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2021 DIGILAW 949 (KAR)

Pavithra v. G. S. Hanumappa

2021-11-16

S.VISHWAJITH SHETTY

body2021
JUDGMENT : 1. The instant regular second appeal is filed by the first defendant challenging the judgment and decree dtd. 4/11/2016 passed by the court of Principal Senior Civil Judge, Davangere (for brevity "the first appellate court") in R.A.No.101/2015 wherein the judgment and decree dtd. 1/9/2015 passed in O.S.No.48/2010 by the court of Civil Judge and J.MF.C., Jagaluru ("the trial court") has been set aside and the suit of the plaintiff has been decreed declaring that the plaintiff is entitled for half share in the suit schedule property. 2. For the sake of convenience, the parties to the appeal are referred to by their rankings before the trial court. 3. Brief facts of the case that would be relevant for the purpose of disposal of this case are: The plaintiff had filed O.S.No.48/2010 before the trial court with a prayer to declare the Will dtd. 19/2/2010 said to have been executed by one Smt.Rudramma as null and void and not binding on the plaintiff and also for partition of the suit schedule property and mesne profits. 4. It is the case of the plaintiff that the plaintiff and defendant No.2 are brothers and defendant No.1 is the daughter-in-law of defendant No.2. There was a partition in the joint family properties between the brothers under a partition deed dtd. 4/5/1990 and under the said deed, the suit schedule property was given to the mother of the plaintiff and defendant No.2 for the sake of maintenance. It is the further case of the plaintiff that just prior to the death of his mother Smt.Rudramma, defendant No.2 forcibly got a Will executed in respect of the suit schedule property and it is under these circumstances, the plaintiff had filed O.S.No.48/2010 before the trial court. 5. After service of summons, the defendants appeared before the trial court and defendant No.1 filed detailed written statement denying the plaint averments while admitting the relationship between the parties. It is the specific case of the first defendant that the suit schedule property was acquired by her under the registered Will dtd. 19/2/2010, which was executed by late Rudramma in her favour. She has further submitted that she has made huge improvement in the suit schedule property and the plaintiff being jealous of her has filed a frivolous suit challenging the Will and also claiming partition in the suit schedule property. 19/2/2010, which was executed by late Rudramma in her favour. She has further submitted that she has made huge improvement in the suit schedule property and the plaintiff being jealous of her has filed a frivolous suit challenging the Will and also claiming partition in the suit schedule property. During the pendency of the suit, defendant No.2 had died and his legal representatives were brought on record and they have filed a separate written statement contending the same set of facts as stated in the written statement of defendant No.1. 6. On the basis of the rival pleadings, the trial court has framed the following issues: <<< "1) Whether plaintiff proves that, suspicious circumstances clouded while executing will by Smt. Rudramma in favour of defendant no.1 as pleaded in plaint? 2) Whether plaintiff proves that, will dtd:19/2/2010 is created and misguided to deceased Smt.Rudramma? 3) Whether defendant no.1 proves that Smt.Rudramma has executed Registered will in her favour on 19/2/2010? 4) Whether plaintiff proves that he is share in the suit schedule property? 5) Whether plaintiff is entitled for relief of declaration? 6) Whether plaintiff is entitled for mesne profit? 7) What decree or order?" 7. During the course of trial before the trial court, the plaintiff got himself examined as PW-1 and examined five other witnesses as PW-2 to PW-6 and got marked 7 documents as Exs.P1 to P7 in support of his case. Defendant No.1 got herself examined as DW-1 and examined eight witnesses as DW-2 to DW9 and got marked 12 documents as Exs.D1 to D12 and closed their side. Thereafterwards the arguments of both sides were heard by the trial court and by answering issue Nos.1, 2, 4 to 6 in the negative and issue No.3 in the affirmative, the trial court dismissed the suit. Being aggrieved by the same, the plaintiff had filed R.A.No.101/2015 before the first appellate court and the said appeal was allowed by the first appellate court by its judgment and decree dtd. 4/11/2016. It is under these circumstances, the first defendant is before this court in this regular second appeal. 8. Learned counsel for the appellant submits that the impugned judgment and decree passed by the first appellate court is against the oral and documentary evidence available on record. 4/11/2016. It is under these circumstances, the first defendant is before this court in this regular second appeal. 8. Learned counsel for the appellant submits that the impugned judgment and decree passed by the first appellate court is against the oral and documentary evidence available on record. He submits that the Will executed by Rudramma has been proved in accordance with law and therefore, the first appellate court was not justified in setting aside the judgment and decree passed by the trial court. He submits that though Rudramma was allotted the suit schedule property under the earlier partition deed for the purpose of her maintenance, in view of Sec. 14 of the Hindu Succession Act, she becomes an absolute owner of the said property and therefore, she is entitled to dispose of the said property according to her will and this aspect of the matter has not been properly appreciated by the first appellate court. He further submits that the first appellate court has erred in coming to a conclusion that the alleged Will is surrounded by suspicious circumstances and therefore, the impugned judgment and decree is unsustainable. 9. Learned counsel for the respondents has argued in support of the impugned judgment and decree and prays to dismiss the appeal. 10. I have carefully considered the arguments addressed on both sides and also perused the material evidence available on record. 11. It is not in dispute that the suit schedule property was allotted to the share of late Smt.Rudramma, who is the mother of the plaintiff and defendant No.2 for the purpose of her maintenance. The property allotted to a female for the purpose of her maintenance would be considered as her absolute property having regard to Sec. 14 of the Hindu Succession Act and therefore, late Smt.Rudramma had a right to dispose of the suit schedule property according to her will. The question that would arise for consideration would be, whether the alleged Will dtd. 19/2/2010 said to have been executed by late Smt.Rudramma would stand the test of law? 12. It is a settled principle of law that the propounder of the Will is required to prove, that the alleged Will is executed in compliance of Sec. 63 of the Indian Succession Act, 1925 and the propounder is also required to prove the said Will as proved as provided under Sec. 68 of the Indian Evidence Act, 1872. 12. It is a settled principle of law that the propounder of the Will is required to prove, that the alleged Will is executed in compliance of Sec. 63 of the Indian Succession Act, 1925 and the propounder is also required to prove the said Will as proved as provided under Sec. 68 of the Indian Evidence Act, 1872. If a party has approached the court on the allegation that the Will is surrounded by suspicious circumstances, the burden to prove the same would lie on such party. 13. The Hon'ble Supreme Court in the case of V.Kalyanaswamy (D) By LRs. And Another vs. L.Bakthavatsalam (D) By LRs. And others, has held that, while the burden to prove the Will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the Will, the burden to prove that the Will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. 14. In the background of the above settled position of law, the burden to prove that the alleged Will executed by late Smt.Rudramma in compliance of the requirement of Sec. 63 of the Indian Succession Act, 1925 and Sec. 68 of the Indian Evidence Act, 1872, lies on the first defendant. To prove the execution of the Will dtd. 19/2/2010 (Ex.D10), the defendants have examined DW-4 and DW-8, who are the attesting witnesses of the said Will and DW-7, who is the scribe of the said Will. 15. DW-4 and DW-8 have deposed to the effect that on the date of execution of the Will, they were in the Taluka office for their personal work and at that time, Rudramma had called upon them to put their signature on the Will and accordingly, they have put their signatures on the Will and that Rudramma was in a sound state of mind at the time of executing the Will. However, in the cross-examination, DW-4 has stated that he had gone to the office of the Sub-Registrar at the request of one Bhemanna, who is none other than the second defendant herein. However, in the cross-examination, DW-4 has stated that he had gone to the office of the Sub-Registrar at the request of one Bhemanna, who is none other than the second defendant herein. DW-4 has further stated that he was not aware about the contents of the document, which was signed by him and he had signed the said document as requested by Bheemanna for the purpose of changing the khata of the property. He has also stated that Rudramma had not affixed her thumb impression in front of him and Rudramma had not seen him signing the said document. He had also not enquired about the said document with Rudramma and he was not aware of the contents of the affidavit filed in lieu of his examination-in-chief. 16. DW-8 another attesting witness of the document has stated that he had agreed to sign the document at the request of one Shivaprakash, who is none other than the husband of the first defendant. Even this witness has stated that he had not seen Rudramma on the said date and he does not know the contents of the said document nor does he know the nature of the said document. He has also deposed that Rudramma had not affixed her signature in front of him nor had he affixed his signature in front of her. He has admitted that Rudramma was bedridden at the time of her death. These two attesting witnesses have therefore not supported the case of the defendants. From the perusal of the cross-examination of these witnesses, it is very clear that they have not seen Rudramma attesting her signature or thumb impression on the alleged Will nor had they signed the said document in front of her. They have clearly stated that they had gone to sign the said document at the request of defendant No.2, who is the father-in-law of the first defendant and one Shivaprakash, who is the husband of the first defendant and not at the request of late Rudramma as contended by them in their examination-in-chief. They have also stated that they are not aware of the contents of the alleged document nor they were informed about the same. DW-8 has gone to the extent of saying that he was not aware of the contents of the affidavit filed by him in lieu of his examination-in-chief. 17. They have also stated that they are not aware of the contents of the alleged document nor they were informed about the same. DW-8 has gone to the extent of saying that he was not aware of the contents of the affidavit filed by him in lieu of his examination-in-chief. 17. Further, DW-7, who is the scribe of the alleged Will said to have been executed by late Smt.Rudramma, has deposed to the effect that on 19/2/2010 when he was in his office, Rudramma had asked him to write a Will deed and as per her instructions, he had written the Will. He has further deposed that Rudramma had brought DW-4 and DW8 as the witnesses to the said document, who have put their signature on the document. This witness has further deposed that at the time of writing the Will, Rudramma was not in a position to walk and after completion of writing the Will, Rudramma had put her LTM on the same and thereafterwars he had signed the said document and submitted the same before the Sub-Registrar for registration and both the attesting witnesses were also present. He has admitted in his cross-examination that the LTM of Rudramma found in the alleged Will/Ex.D10 has not been identified by any of the attesting witnesses. Since this witness has clearly stated that Rudramma was not in a position to walk as on the date of execution of the Will, it would be very difficult to believe that Rudramma had come to is office on 19/2/2010 for the purpose of getting the Will written and it is under her instructions, he had written the Will in his office. From the overall appreciation of the evidence of DW-4, DW-7 and DW-8, it is very clear that as on the date of execution of the alleged Will, Rudramma was not keeping good health and she could not have come to the office of the scribe or to the office of Sub-Registrar alone. The signature or thumb impression of Rudramma has not been identified by the attesting witnesses and it is clearly deposed by them that they have not seen Rudramma affixing her thumb impression or signature on the alleged Will. Therefore, the alleged Will dtd. 19/2/2010/Ex.D10 has not been proved by its propounder in compliance of Sec. 63 of the Indian Succession Act, 1925 and Sec. 68 of the Indian Evidence Act, 1872. Therefore, the alleged Will dtd. 19/2/2010/Ex.D10 has not been proved by its propounder in compliance of Sec. 63 of the Indian Succession Act, 1925 and Sec. 68 of the Indian Evidence Act, 1872. 18. Further, the alleged Will is written on 19. 02.2010 and has been registered on 20/2/2010. DW-1, who is none other than defendant No.1, has deposed that Rudramma had expired on 20/2/2010 at about 3.30 p.m. Ex.D10, which is the registered Will, is registered in the office of Sub-Registrar at 3.22 p.m. on 20/2/2010. The attesting witnesses have deposed to the effect that they had not seen Rudramma at the time of affixing their signatures on the document nor have they identified the signature or thumb impression of Rudramma. The evidence of DW-7, who is an Advocate and the scribe of the alleged Will would go to show that Rudramma was ill-disposed as on19/2/2010 and she was not in a position to walk. Therefore, it is very difficult to believe that the alleged Will was executed by her on 19/2/2010 in the office of the scribe and it is also difficult to believe that she had gone to the office of Sub-Registrar on 20/2/2010 for the purpose of registration. The Will said to have been executed by late Rudramma on 19/2/2010 is allegedly registered on 20/2/2010 at about 3.22 p.m. and on the very same day at about 3.30 p.m., Rudramma is said to have expired. All the above circumstances would raise a serious doubt with regard to genuineness of the Will and since the Will is surrounded with suspicious circumstances, it cannot be said that the defendants have proved the execution of the Will by late Smt.Rudramma and the said Will has been executed by her in a sound state of mind. 19. The trial court without appreciating this aspect of the matter has erred in dismissing the suit of the plaintiff without even properly appreciating the evidence of the attesting witnesses and the scribe. 19. The trial court without appreciating this aspect of the matter has erred in dismissing the suit of the plaintiff without even properly appreciating the evidence of the attesting witnesses and the scribe. The first appellate court having rightly appreciated the oral and documentary evidence available on record, more so the depositions of DW-4 and DW-8, who are the attesting witnesses to the alleged Will and DW-7, who is the scribe of the Will, has rightly arrived at a conclusion that the alleged Will has not been proved by the defendants in accordance with law and the said Will is not free from suspicion and accordingly has allowed the appeal by setting aside the judgment and decree passed by the trial court and consequently, decreeing the suit. 20. It is not in dispute that the plaintiff and the second defendant are the only sons of late Smt.Rudramma and therefore, the first appellate court is also justified in declaring that the plaintiff is entitled for half share in the suit schedule property. 21. In my considered view, the judgment and decree passed by the first appellate court does not suffer from any illegality or irregularity, which calls for interference by this court. The first appellate court having re-appreciated the oral and documentary evidence available on record has rightly set aside the judgment and decree passed by the trial court by decreeing the suit. 22. I, therefore, find no material illegality or irregularity in the impugned judgment and decree passed by the first appellate court. Further, the learned counsel for the appellant/defendant No.1 has failed to make out any substantial question of law, which warrants admission of this appeal for hearing. 23. Under the circumstances, I decline to entertain this appeal. Accordingly, the Regular Second Appeal is dismissed at the stage of admission itself. In view of dismissal of the appeal, the pending I.A. does not survive for consideration. Hence, it stands disposed of.