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2017 DIGILAW 686 (KAR)

Sharanawwa v. Hanamappa

2017-04-04

SREENIVAS HARISH KUMAR

body2017
JUDGMENT : 1. The appellants being the defendants in O.S.No.38/1989 on the file of Munsiff, Kustagi, have challenged the judgment and decree dated 27.01.2005 rendered by the Fast Track Court-I, Koppal, in R.A.No.149/2004 confirming the judgment of the trial Court. 2. By referring to the parties with respect to the position that each one of them held before the trial Court, pleadings are summarised as below: One Rangappa S/o. Laxmappa is the father of the first defendant, Sharanawwa, and the husband of second defendant Yamanawwa. The plaintiff, Hanamappa is the nephew of Rangappa. Since defendant No.2 was not a faithful wife and that defendant No.1 was not in good terms with him, and that he was deserted by the defendants, Rangappa had taken shelter in the house of Hanamappa. In view of this, on 18.12.1986, he executed a Will in respect of suit property in favour of the plaintiff. This Will came to be registered also. Before executing this Will, he cancelled the Will executed by him earlier on 17.01.1979 in favour of the first defendant. Subsequently, because the defendants started interfering with his possession, he filed a suit in O.S.No.3/1987 against these defendants. During the pendency of suit, Rangappa died. The plaintiff, Hanamappa came on record in this suit. These defendants did not contest the suit, they were placed ex parte. Ultimately this suit came to be decreed. Challenging this judgment and decree in the said suit, the defendants preferred an appeal, R.A.No.5/1988, to the Court of Civil Judge, Koppal. In the said appeal, it was held that since the suit was for permanent injunction and the relief was personal in nature, the suit abated soon after the death of Rangappa, and therefore, the appeal was allowed. However, the plaintiff continued to be in possession of the suit lands. The defendants took objection for mutating the name of plaintiff in the revenue records. The Tahasildar considered his mutation proceeding as a dispute case and passed an order on 21.11.1987 accepting the mutation in the name of plaintiff. This being the background, on 03.04.1989 the defendants caused interference with plaintiff’s possession and this was the reason for the plaintiff to file a suit for declaration of his title and permanent injunction to restrain the defendants from interfering with his possession and enjoyment of suit property. 3. Defendant No.2 filed written statement denying all the plaint averments. This being the background, on 03.04.1989 the defendants caused interference with plaintiff’s possession and this was the reason for the plaintiff to file a suit for declaration of his title and permanent injunction to restrain the defendants from interfering with his possession and enjoyment of suit property. 3. Defendant No.2 filed written statement denying all the plaint averments. She specifically pleaded that her husband Rangappa was seriously ill in the month of December 1986. The plaintiff was the nearest relative and he used to take her husband to the hospital at Kustagi for treatment. On one such occasion when the plaintiff took her husband to hospital, he might have obtained his thumb impression on a blank paper by mis-representing him that his thumb impression was required in connection with his treatment. Therefore, it is contended that Rangappa was suffering from old age ailments and that he did not have sound disposing state of mind to execute the Will. He also stated that the cancellation of the earlier Will by Rangappa could have been managed by the plaintiff. Thus, it is the stand of defendants that the Will dated 18.12.1986 is not genuine. 4. The trial Court raised six issues and one additional issue on the pleadings. The trial Court came to the conclusion that the plaintiff was able to prove Ex.P-1, the Will, executed by Rangappa. Very particularly, one additional issue was to be proved by the defendants to the effect that plaintiff mis-represented Rangappa and obtained his thumb impression on a blank paper at the time of taking him to medical treatment. This issue was held not proved by the defendants. Therefore, coming to the conclusion that the execution of Will as per Ex.P-1 has been proved, the trial Court decreed the suit of the plaintiff. 5. The defendants preferred an appeal in R.A.No.149/2004. The learned Judge of the Fast Track Court-I dismissed the appeal by confirming the judgment of the trial Court. Hence, this second appeal. 6. On 14.12.2006, this appeal was admitted to consider the following substantial question of law: “Whether the Courts below were justified in holding that the Will dated 18.12.1986 stands proved, when admittedly the executor had disinherited his wife and daughter, the defendants in the suit, when there being any acceptable evidence to disinherit?” 7. Heard the argument of the appellants’ counsel as well as the respondent’s counsel. 8. Heard the argument of the appellants’ counsel as well as the respondent’s counsel. 8. It is the argument of the appellants’ counsel that the Will as per Ex.P1 has not been proved as per Section 63 of the Indian Succession Act, 1925 (for short, ‘the Act’). It is his argument that the executor of the Will should sign in the presence of the attestors and that the attestors should also put their signatures in the presence of the executor, then only it can be said that the Will has been proved. So, basing his argument, he submitted that in this case the attestors, who have been examined as P.Ws.2 and 3 do not speak that they put their signatures in the presence of the executor, Rangappa. It is his further argument that these two witnesses do not identify the signature and their evidence do not disclose that they have identified the signature of the testator, and therefore, there is no valid attestation and in the result, the Will as per Ex.P-1 does not get established. In support of his argument, he places reliance on the judgment of the Supreme Court in the case of S.R. Srinivas and others vs. S. Padmavathamma, 2010 (5) Supreme 70 . Secondly, he argues that the plaintiff is a stranger to the family of the executor of the Will. The first defendant is the daughter and second defendant is the wife of the executor. When they have been excluded, it gives rise to suspicious circumstances. There is no proper explanation as to why they have been kept away from the Will. Therefore, the Will cannot be believed. Therefore, it is his further argument that for these reasons, the case of the plaintiff cannot be believed and that both the Courts have committed an error in decreeing the suit of the plaintiff. 9. On the contrary, the learned counsel for respondent argues that the executor, namely, Hanamappa himself filed a suit, which is O.S.No.3/1987. The plaint copy of said suit has been produced as per Ex.P-11. In the said plaint, it is clearly stated as to why Rangappa had to execute the Will in favour of plaintiff by not giving any share to the defendants. When such reasons are forthcoming, the Will cannot be disbelieved. Further it is argued that execution of the Will has been proved by examining two attestors, namely P.Ws.2 and 3. In the said plaint, it is clearly stated as to why Rangappa had to execute the Will in favour of plaintiff by not giving any share to the defendants. When such reasons are forthcoming, the Will cannot be disbelieved. Further it is argued that execution of the Will has been proved by examining two attestors, namely P.Ws.2 and 3. Their evidence very clearly discloses that those two attestors put their signatures to the Will in the presence of the testator, and the testator also affixed his thumb impression to the Will in the presence of the attestors. Therefore, the requirement of Section 63 of the Act has been met with and there is valid execution of the Will. It is his further argument that when both the Courts below have held that execution of the Will have been proved, that question cannot be gone into in the second appeal. 10. After hearing the argument of both the counsel, it has to be stated now that so far as execution of the Will, Ex.P-1 is concerned, both the Courts have concurrently held that this execution has been proved. Even now I have got read the testimonies of attestors, P.Ws.2 and 3. Their evidence clearly discloses that the testator affixed his thumb impression to the Will in the presence of the attestors and that the attestors subscribed their signatures and thumb impression to the Will in the presence of the testator. 11. The learned counsel for the appellants pointed out one answer of P.W.2 in the cross-examination that he is not able to identify his thumb impression. With regard to this answer, it is my clear opinion that it is a stray answer, which should not be given any importance. If now the evidence of P.W.2 is read, it can be clearly made out that he was very much present when Rangappa executed the Will by putting his thumb mark to the Will. So, when there is a clear finding with regard to due execution of the Will by both the Courts below, this Court in second appeal can re-appreciate the facts. Therefore, it has to be held that the execution of Will as per Ex.P-1 has been proved. 12. So, when there is a clear finding with regard to due execution of the Will by both the Courts below, this Court in second appeal can re-appreciate the facts. Therefore, it has to be held that the execution of Will as per Ex.P-1 has been proved. 12. With regard to the substantial question of law framed by this Court at the time of admission, it has to be stated that the exclusion of the natural heirs in the Will definitely gives rise to suspicion. In the Will, the reason must be forthcoming for exclusion of the natural heirs or some explanation in that regard must be available. In the judgment of the Hon’ble Supreme Court in S.R. Srinivas (supra), the Hon’ble Supreme Court has placed a reliance on its earlier judgment in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, 1959 Supp (1) SCR 426, wherein, it has been held as below: “3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. 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 circumstances 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.” 13. Therefore, the burden is on the propounder i.e., the plaintiff to explain away the suspicious circumstances. In this regard, the plaintiff has produced Ex.P-11, which is the certified copy of the plaint in O.S.No.3/1987. It is useful to extract the averment made in para 2 of the said plaint as below: “2. That, the plaintiff is the owner and possessor of absolute rights of the suit property mentioned in more detail in schedule “A” below. The defendant No.1 is the daughter of plaintiff and the second defendant is her husband. The plaintiff has no male issues. His wife by name Yamanavva is a lady of cruel nature and also a very quarrelsome lady. The plaintiff has become very old and suffering from diseases. In his old age, the wife of the plaintiff and also the defendants are not looking after him. The son of sister of plaintiff by name Hanamappa is taking care of the plaintiff. Therefore, the plaintiff has executed a Will deed bequeathing the suit property to him on 18.12.1986 after cancelling his earlier Will in favour of defendant No.1 regarding the suit agricultural lands. The said Will made by the plaintiff in the name of said son of his sister is his last Will.” 14. Therefore, on perusing the above averments found in the plaint, it becomes clear that the relationship between Rangappa and the defendants was not good. It becomes further clear that Rangappa was not being looked after well by his wife, as she was a quarrelsome lady. It was the plaintiff, who was looking after him in his old age. Even in the Will it is clearly mentioned that these defendants were not looking after the testator in the way he should have been in his old age. For this reason, the testator, Rangappa decided to exclude the defendants from inheritance, I think that there is proper explanation for excluding them. So when there is proper explanation, it has to be stated further that the suspicious circumstances that the learned counsel for the appellants tries to make out cannot be appreciated. For this reason, the testator, Rangappa decided to exclude the defendants from inheritance, I think that there is proper explanation for excluding them. So when there is proper explanation, it has to be stated further that the suspicious circumstances that the learned counsel for the appellants tries to make out cannot be appreciated. Both the Courts below have not committed any error in deciding the case in favour of the plaintiff to declare his title on the basis of the Will. In view of this discussion, I come to the conclusion that this appeal should fail and accordingly it is dismissed.