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2014 DIGILAW 720 (KAR)

G. Shambhavi Rao v. G. Jayalaxmi Rao

2014-08-07

S.ABDUL NAZEER

body2014
Judgment : 1. R.S.A.No.831/2010 is directed against the judgment and decree in R.A. No. 3/2002 dated 2G. 11.2009 on the file of the I Additional District Judge, D.K., Mangalore and R.S.A.No.832/2010 is directed against the judgment and decree in R.A.No. 19/2002 on the file of the same Court. 2. G.Jayalaxmi Rao, D/o. late Ratnakar Rao, filed O.S.No.343/ 1986 on the file of II Addl. Civil Judge (Sr.Dn.) and C.J.M., Mangalore, for partition and separate possession of her 1/6-h share in the suit schedule properties. The suit schedule properties belong to her father late G.Ratnakar Rao. According to her, first defendant Smt. G.Shambhavi Rao, was the wife of late Ratnakar Rao. Defendant Nos.2 to 5 namely, G.Vijayaiaxmi Rao; G.Anuradha Rao; G.Veena Rao and G.Sudhir Rao, are her sisters and brother. Sixth defendant Smt.Gulabi is not entitled to any share/interest in the suit schedule properties. She is making attempt for taking possession of the said properties. Hence, she is also made a party to the suit. 3. Defendant No.1 - Smt.G.Shambhavi Rao has filed written statement contending that defendant No.6 has no right whatsoever in the suit schedule properties. Ratnakar Rao had executed a Will dated 15.5.1980 bequeathing the entire properties in her favour. Therefore, the suit schedule properties are not available for partition. 4. Defendant No.6 has filed written statement contending that the suit is a collusive one and speculative and manipulated to make unlawful gains. She had filed a suit O.S.No.319/ 1983 on the file of the I Addl. Munsiff, Mangalore, against the first defendant for declaration and permanent injunction. In the said suit, the Court below has held that the first defendant was not the wife of late G. Ratnakar Rao and she was held to be the wife of late G.Ratnakar Rao. She has denied the execution of the Will by G.Ratnakar Rao. 5. On the basis of the pleadings of the par ties, the trial Court has framed issues. The trial Court on appreciation of the materials on record has held that the Will said to have been executed by late G.Ratnakar Rao is not valid. The trial Court has declared that G.Shambhavi Rao, is legally wedded wife of late G.Ratnanakar Rao. 6. G. Shambhavi Rao, filed an appeal R.A.No.3/2002 challenging the findings of the trial Court in relation to the Will - Ex.D.6. The trial Court has declared that G.Shambhavi Rao, is legally wedded wife of late G.Ratnanakar Rao. 6. G. Shambhavi Rao, filed an appeal R.A.No.3/2002 challenging the findings of the trial Court in relation to the Will - Ex.D.6. Smt.Gulabi G. Rao, filed RA No. 19/2002 challenging the judgment and decree of the trial Court, wherein it has been held that Smt.G.Shambhavi Rao, is the legally wedded wife of late G.Ratnakar Rao. 7. G.Shambhavi Rao, also filed R.A.No.724/2004 challenging the judgment and decree in O.S.No.319/1983 dated 30.8.1986 wherein the trial Court had granted an order of injunction in favour of Smt.Gulabi Rao in respect of the suit schedule properties, which has been dismissed. It is not in dispute that Smt.G.Shambhavi Rao challenged the judgment and decree in RA No. 724/2004 dated 26.11.2009 in R.S.A.No,833/2010 and that the second appeal has been dismissed on 7.10.2013 as having become infructuous 8. The contention of the learned Counsel for the appellants in both these appeals is that the Court below is not justified in holding that the Will executed by G.Ratnakar Rao at Ex.D6 dated 15.5.1980 is not a valid Will. It is argued that the first defendant/appellant herein has produced sufficient material to establish that the Will is a valid Will. It is further contended that the trial Court has rightly held that the appellant was the legally wedded wife of Late G.Ratnakar Rao. The first appellate Court has reversed the said finding without any basis and has further erred in holding that Smi. Gulabi Rao was the legally wedded wife of Late G.Ratnakar Rao. 9. Having regard to the contentions urged, the first question for consideration is: whether the first appellate Court is justified in holding that Smt G. Shambhavi Rao is not the legally wedded wife of G.Ratnakar Rao? 10. Gulabi Rao has deposed before the trial Court that her marriage with G. Ratnakar Rao was solemnized on 31.1.1947 at Kalikamba Temple, Car Street, Mangalore. She has further stated that at the time of marriage, Ratnakar Rao was working as a Clerk in Police Department and subsequently he resigned from service and working as an agent or Broker in the office of the R.T.O., Mangalore. Her husband was owning a car bearing registration No.MYX 375. Shambhavi Rao was not married to Ratnakar Rao. He was residing with Shambhavi. Smt. Gulabi has died during the pendency of the appeal before this Court. Her husband was owning a car bearing registration No.MYX 375. Shambhavi Rao was not married to Ratnakar Rao. He was residing with Shambhavi. Smt. Gulabi has died during the pendency of the appeal before this Court. 11. PW.2 is a friend of Gulabi. She has stated that the marriage of Ratnakar Rao and Gulabi had taken place in the year 1947 and she has attended the marriage. PW.3 is a relative of Gulabi. She has stated that the marriage between Rathnakar Rao and Gulabi had taken place in the year 1947 and she has attended the marriage. In the corss-examination, she has stated that from 1975 till 1983 Gulabi was staying at her parents' house situated near Kalikamba temple. PW.4 is the younger brother of Gulabi. He has stated that the marriage between Gulabi and Ratnakar Rao has taken place on 31.1.1947 and the marriage was solemnized in Kalikamba temple. PW.5 is the Priest of Gulabi's family, who had performed the marriage of Ratnakar Rao and Gulabi in the year 1947 at the house of Srinivas Pai which is just behind the Kalikamba temple. PW.6 is a friend of Gulabi. In his evidence, he has stated that he has witnessed the marriage of Ratnakar Rao and Guiabi. PW.7 is another witness, who is also a relative of Gulabi. She has also stated that the Gulabi had married Ratnakar Rao. PW.8 is also a relative of Gulabi. According to him, he had taken the photographs of marriage of Ratnakar Rao and Gulabi, which was marked as Ex.P13. 12. Though Smt.Shambhavi is claiming to be the legally wedded wife of Ratnakar Rao, she has not produced any materials in support of the said contention. According to her, the marriage had taken place at Kateel temple. However, the Archak of the temple was not examined. She has also not produced any certificate of marriage. Infact, in the report at Ex.P43 submitted by her, she has admitted the marriage of Gulabi with Rathnakar Rao. She has further stated that Rathnakar Rao had left Smt. Gulabi about 23 years ago. 13. It is pertinent to note here that Gulabi has filed a suit in O.S.No.319 /1983 and an issue was framed in the said suit as to whether Gulabi is the legally wedded wife of Rathnakar Rao. She has further stated that Rathnakar Rao had left Smt. Gulabi about 23 years ago. 13. It is pertinent to note here that Gulabi has filed a suit in O.S.No.319 /1983 and an issue was framed in the said suit as to whether Gulabi is the legally wedded wife of Rathnakar Rao. In the said suit, after appreciation of the materials on record, the trial Court has held that Gulabi is the wife of Late Rathnakar Rao. In spite of the said decree, the trial Court in O.S.No.343/ 1986 has held that Gulabi is not the legally wedded wife of Rathnakar Rao. The first appellate Court has considered the entire evidence on record and has held that the marriage between Gulabi and Rathnakar Rao has been proved. I do not find any error in the said finding. 14. That brings me to the next question, as to whether the Will-Ex. D6 set up by Smt. Shambhavi is valid. 15. A Will is a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death. The essential characteristic of a Will is that it is a mere declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention, a disposition which requires the testator's death for its consummation. Section 61 of Indian succession Act, 1925 states that a Will or any part of a Will, the making of which has been caused by fraud or coercion or by such importunity which takes away the free agency of the testator is void. The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in Section 63 of the Act. 16. It is well established that generally a propounder of the Will has to prove the due and valid execution of the Will. If there are any suspicious circumstances surrounding the execution of the Will, the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. 17. 16. It is well established that generally a propounder of the Will has to prove the due and valid execution of the Will. If there are any suspicious circumstances surrounding the execution of the Will, the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. 17. The contention of the appellant is that Late G Rathnakar Rao had executed his last Will dated 15.12.1980 and by virtue of the same, she has become the absolute owner of the assets left behind by Late G.Rathnakar Rao. According to Gulabi Rao, the said Will is a forged document. DW.3, who was examined in support of the Will states that the Will was executed by Rathnakar Rao and that he has signed the Will at Ex.P6(b). Another person by name Krishna has also signed to the said document at Ex.D&6(c), DW.3 was not able to state as to whether he had gone to the house of Rathnakar Rao when Ex.D6 was executed. He was not able to state as to who typed Ex.D6. DW.3 is not a resident of the same locality, where defendant No.1 and Rathnakar Rao were residing. According to him, Rathnakar Rao was suffering from serious ailments. DW. 1 is silent as to the state of mind of Rathnakar Rao at the time of execution of the Will. It is clear from the evidence of DW.3 that he did not ascertain as to whether in whose favour and in respect of which property, the Will has been executed. 18. If the propounder succeeds in removing the suspicious circumstances, the Court would have to give effect to the Will. In the instant case, the propounder has failed to remove the suspicious circumstances. Defendants No.2 to 5 were minors at the time of execution of the Will. Nothing has been stated as to why they have been deprived of a share in the property. The first Appellate Court has again appreciated the evidence of the parties. The findings of fact recorded by both the Courts is on appreciation of the materials on record and there is no perversity, illegality or irregularity whatsoever in these findings. The appeals do not involve any substantial question of law. They are accordingly dismissed, costs.