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2023 DIGILAW 1028 (KAR)

Shantinath v. Mahaveer

2023-08-30

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Defendants No.1 to 4 who are the Class-I heirs of late Rayappa Topannavar are before this Court aggrieved by the decree for declaration of title in favour of the plaintiff in O.S.No.35/2011 on the file of the Senior Civil Judge at Saundatti. 2. To understand the case in a proper perspective, it is necessary to refer to the admitted genealogy of the parties, which is as under: 3. The trial Court accepted the plea of the plaintiff who claimed absolute right over the suit schedule property bearing Sy.No.383 measuring 13 acres 33 guntas in Yaraganavi village of Saundatti Taluk based on the Will dated 07.05.1996 alleged to have been executed by Rayappa Topannavar, the father of the plaintiff. 4. The testator Rayappa Topannavar died on 26.08.2003. The first wife was Tavanavva and second wife is also Tavanavva. He married the second wife after the demise of first wife. From the first wife he had three sons and one daughter and from the second wife he had two sons and two daughters. The plaintiff claims that the children from the second wife were residing separately and he was looking after his father and on account of love and affection towards father, his father executed a Will dated 07.05.1996 bequeathing suit schedule property exclusively in his name. 5. It is also his contention that the Will is duly registered. The plaintiff further claims that after the death of the father, he submitted an application to the jurisdictional Tahasildar to enter his name in the property records based on the Will dated 07.05.1996. 6. Defendants No.1 to 4 who are the children from first wife objected to the certification of the mutation based on the Will. The Tahasildar refused to certify the mutation based on the Will. Thereafter, the plaintiff approached the jurisdictional Assistant Commissioner, who accepted the plea of the plaintiff and ordered the name of the plaintiff to be entered in the property record based on the said Will. 7. The defendants challenged the said order of the Assistant Commissioner. The Deputy Commissioner held in favour of the defendants and ordered that the names of all the Class-I heirs to be entered in the property records. This order is called in question by the plaintiff by filing a writ petition which was dismissed and the writ appeal by the plaintiff is also dismissed. The Deputy Commissioner held in favour of the defendants and ordered that the names of all the Class-I heirs to be entered in the property records. This order is called in question by the plaintiff by filing a writ petition which was dismissed and the writ appeal by the plaintiff is also dismissed. After the dismissal of the writ appeal, suit is filed seeking declaration of title based on the aforementioned Will. 8. The defendants No.1 to 4 appeared and contested the claim of the plaintiff. Defendants No.5 to 7 who are the brothers and sisters of the plaintiff did not contest the claim of the plaintiff. They supported the claim of the plaintiff. 9. Contesting defendants No.1 to 4 denied execution of the Will and in addition to that they also took a contention that the property covered under the Will is the property acquired by the testator utilizing the joint family income. Thus, the testator did not have absolute right over the property and could not have executed a Will in respect of the entire property. The trial Court accepted the contention of the plaintiff and held that the execution of the Will is proved and also concluded that the property was the self-acquired property of the testator. 10. Aggrieved by the aforementioned judgment and decree, the contesting defendants No.1 to 4 are in appeal. 11. Sri.Mrutyunjay Tata Bangi, the learned counsel for the appellants contends that the suspicious circumstances brought out in the evidence of PW.2, the alleged attesting witness as well as the identifying witness before the Sub-Registrar are completely overlooked by the trial Court. Participation of the beneficiary/plaintiff in execution of the Will is also completely overlooked by the trail Court and the very fact that the alleged Will seeks to disinherit the natural heirs without there being any reason would demonstrate that the Will is shrouded with suspicious circumstances and the burden cast on the testator to dispel on the suspicious circumstances is not discharged. Thus, he would urge that the suit is to be dismissed. 12. In the alternative, he contends that the evidence on record would disclose the fact that the property is the joint family property and acquired from the income derived from ancestral properties. As such the testator could not have executed a Will in respect of the entire property. 13. Thus, he would urge that the suit is to be dismissed. 12. In the alternative, he contends that the evidence on record would disclose the fact that the property is the joint family property and acquired from the income derived from ancestral properties. As such the testator could not have executed a Will in respect of the entire property. 13. Sri.Shivaraj S. Balloli, the learned counsel appearing for the contesting respondent would submit that the contesting defendants/appellants are the children from the first wife of the testator and they have been living separately for long and the testator was living with the beneficiary/plaintiff and he was looked after by the beneficiary/plaintiff, as such the testator had every reason to execute a Will in favour of the first defendant. 14. He would also submit that aware Class-I heirs of the testator from his second wife namely defendants No.5 to 7 have not disputed execution of the Will. He would further submit that the Will is duly attested and registered and testator survived for seven years after the registration. He would also submit that the Will under signature of the testator is not disputed and the registration is also not disputed and minor discrepancies, if any, in the cross-examination of PW.1 and PW.2 will not lead to the conclusion that the Will is not executed by the testator. 15. He would also submit that the witness examined on behalf of the contesting defendants namely DW.2, the attesting witness though in the examination-in-chief has denied execution and attestation of the Will, in the cross-examination has completely admitted execution as well as the attestation of the Will. 16. He would also contend that no materials are placed to show that the property covered under the Will is the ancestral property or the property purchased from the income from ancestral properties. 17. Having considered the contentions raised at the bar and on perusal of the records, the following points would arise for consideration: (i) Whether the suit schedule property is purchased by the testator from the income from ancestral properties? (ii) Whether execution of the Will dated 07.05.1996 is duly proved as claimed by the plaintiff? 18. 17. Having considered the contentions raised at the bar and on perusal of the records, the following points would arise for consideration: (i) Whether the suit schedule property is purchased by the testator from the income from ancestral properties? (ii) Whether execution of the Will dated 07.05.1996 is duly proved as claimed by the plaintiff? 18. Though the defendants have taken a contention in the written statement that in the suit property i.e. the property covered under the Will is purchased by the testator from the income of the ancestral properties, the said contention is disputed by the plaintiff while the plaintiff was cross-examined by the contesting defendants. Though it is brought out in the cross-examination that three survey numbers are standing in the name of the plaintiff's father, nothing on record is placed to show that those three survey numbers which were standing in the name of the plaintiff's father were inherited by the plaintiff's father. No document is produced to show that the testator inherited the properties and he had income from those properties and income from those properties is utilized to purchase the suit property. In the absence of any evidence to hold that the suit property was acquired from the income of the joint family properties, it is not possible to accept the contention that the testator did not have the absolute right over the property covered under the Will. 19. Sri.Mrutyunjay Tata Bangi would contend that the propounder/plaintiff has to establish that the property was the self-acquired property of the testator. It is to be noticed that it is a well settled proposition of law that the property standing in the name of an individual is his self-acquired property unless proved otherwise. The presumption in favour of the testator that he owned the property is not rebutted by leading any evidence to show that he had other ancestral properties, yielding income and from that income he has purchased the property covered under the Will. There is no admission in the cross-examination of the plaintiff to hold that the testator had inherited the properties and income from those properties was utilized to purchase the property covered under the Will. This being the position, this Court does not find any ground to interfere with the finding of the trial Court that the testator was the owner of the property. 20. Sri. This being the position, this Court does not find any ground to interfere with the finding of the trial Court that the testator was the owner of the property. 20. Sri. Mrutyunjay Tata Bangi has referred to the cross-examination of PW1 who states that, for about a month he was discussing with his father/testator about the execution of the Will by the father. It has also come in the cross-examination that, PW1, the beneficiary went to Gokak to purchase the stamp paper two days earlier to the execution of the alleged Will. He would further submit that, the father was aged around 80 years and he was suffering from asthma and he was not having sound disposing state of mind. 21. It is also his contention that, PW2, the attesting witness, who is also said to be the identifying witness before the Sub-Registrar, in his cross-examination states that, he went to the office of the Sub-Registrar around 11 O'clock in the morning and he was there in the office of the Sub-Registrar for about one hour and he signed the document and thereafter he went to his shop and he did not return to the office of the Sub-Registrar in the evening. 22. By referring to this evidence, with reference to the time of registration mentioned in the Will marked at Ex.C1, wherein it is stated that the Will is registered at 4.00 O'clock, Sri. Mrutyunjay Tata Bangi would contend that PW2 is not trustworthy. He would also submit that the said document at Ex.C1 would reveal that there are two identifying witnesses including PW2 and thus he would urge that the registration itself is not a valid registration and there is discrepancy in the evidence given by PW2, the alleged attesting witness to the Will in question. 23. He would also contend that, PW2 is the classmate of the beneficiary and not a person acquainted with the testator and it is highly unlikely that the testator has called PW2 to be an attesting witness and involvement of the classmate of the beneficiary would lead to the strong suspicion that the beneficiary has played a dominant role in getting the Will executed by influencing his father against his will. 24. This contention of Sri.Mrutyunjay Tata Bangi, has to be understood in the context of the defence taken in the written statement. 25. 24. This contention of Sri.Mrutyunjay Tata Bangi, has to be understood in the context of the defence taken in the written statement. 25. On perusal of the written statement, it can be noticed that the contesting defendants have not taken a defence that the Will is the outcome of fraud, misrepresentation, coercion or undue influence. Nevertheless, the burden is on the propounder to dispel all the suspicious circumstances. 26. As could be noticed in the evidence, there is no dispute about the signature of the testator appearing in the Will and it is also forthcoming that the Will is registered. The Will is dated 07.05.1996. The evidence of the witnesses is recorded in the year 2014. This being the position, this Court is of the view that the minor discrepancy in the evidence of PW2 relating to the time when the document was signed and the time when the document is registered, cannot lead to the inference that the Will is not executed. 27. It is also required to be noticed that the defendants No.5 to 7, who would have been benefited had they denied the execution of the Will, have not disputed execution of the Will. The evidence on record would also indicate that the children from the first wife namely, the contesting defendants, were not having cordial relationship with the testator. Probably after the marriage of the testator to the second wife. 28. More than anything else, the evidence given by PW2 in the cross-examination relating to attestation is not disputed by the contesting defendants while cross-examining PW2. The evidence of PW2 in the cross-examination relating to his putting the signature on the Will as an attesting witness in the presence of a testator and in the presence of another attesting witness is not questioned at all. 29. Added to this, it is also interesting to note that the contesting defendants made an attempt to disprove the Will by examining another attesting witness, who is also the identifying witness namely, Basavanni. It is very interesting to note that Basavanni had supported the case of the contesting defendants in his examination-in-chief, wherein he has stated that he has not seen the testator signing the Will. He has only put the signature on a paper without knowing that it is a Will. It is very interesting to note that Basavanni had supported the case of the contesting defendants in his examination-in-chief, wherein he has stated that he has not seen the testator signing the Will. He has only put the signature on a paper without knowing that it is a Will. On reading his examination-in-chief, it leads to an inference that he has not played a role of attesting witness and the testator has not signed before him and another attesting witness has not signed before him. However, in the cross-examination, he has given a U turn to what he has stated in the examination-in-chief. 30. All the aspects that are required to prove the due execution of the Will arose admitted in the cross examination by DW2, the witness examined on behalf of the contesting defendants. Absolutely there is no explanation by the contesting defendants as to how the evidence of DW2 in the cross-examination has to be ignored. 31. It is also required to be noticed that the Will was registered on 07.05.1996 and the testator was aged 80 years and died seven years later. This leads to the inference that the testator though was aged 80 years at the time of execution of the Will, must have posed sound disposing state of mind when the Will was executed 8 years prior to his death. It was also required to be noticed that he has not taken any steps to cancel the registered Will dated 07.05.1996, which under the law prevailing then would be sent to the testator soon after the registration through a registered post. The Court has to draw an inference that, after the registration of the Will, the Will was sent by the jurisdictional Sub-Registrar to the testator through the registered post. If at all the testator has not executed the Will, certainly he would have taken steps to cancel the Will. It is nobody's case that the testator has cancelled the Will dated 07.05.1996. 32. The defence taken by the defendants No.1 to 3, it is more relating to the nature of the properties where they contend that the properties are the ancestral properties. It is nobody's case that the testator has cancelled the Will dated 07.05.1996. 32. The defence taken by the defendants No.1 to 3, it is more relating to the nature of the properties where they contend that the properties are the ancestral properties. Also considering the fact that there is no plea relating to fraud, misrepresentation, coercion or undue influence or there is no plea that the signature on the disputed Will is forged or that it is a case of impersonation where the testator has not gone to the office of the Sub- Registrar, this Court is of the view that the due attestation and execution of the Will is established. 33. Though Sri. Mrutyunjaya Tata Bangi would urge that, nothing is averred in the Will as to why the other Class-I heirs are disinherited under the Will, it is settled position of law that, merely because the natural heirs are disinherited under the Will, that does not lead to the conclusion that the Will is suspicious. 34. The Hon'ble Apex Court has held that the very purpose of execution of the Will is to intervene in the normal course of succession. Under the circumstances, this Court is of the view that the execution of the Will is duly established on the basis of evidence led or at least the defendants are not in a position to say that the Will is not proved or disproved. 35. As far as the contention of Sri. Mrutyunjay Tata Bangi that the suit is barred by limitation is concerned, it has to be noticed that, though the testator died in the year 2003 and though the person claims right under the testament of his father, the cause of action to file a suit does not arise immediately after the death of the father. No provision of law mandates the legatee to approach the Court to seek declaration relating to the Will or to seek probate. No provision of law mandates the legatee to approach the Court to seek declaration relating to the Will or to seek probate. However, Mrutyunjay Tata Bangi would urge that, when the application is filed by the plaintiff before the Revenue Authorities to enter his name, there was objection by the contesting defendants and they denied execution of the Will and thus urged that the moment execution of the Will is denied, there is cause of action and once cause of action starts, the limitation clock will not stop and it would run continuously and the suit filed beyond three years from the date of the objection filed before the Tahasildar is barred by Limitation. 36. It is to be noticed that, when the petition was filed before the Tahasildar disputing the execution of the Will, the matter was heard by the jurisdictional Court and an order is passed in favour of the defendants. The plaintiff approached the Assistant Commissioner. The Assistant Commissioner allowed the appeal and directed the name of the beneficiary under the Will to be entered in the property records. The contesting defendants approached the Deputy Commissioner, who allowed the Revision and directed the names of all the heirs to be entered in the property records. This order was called in question by the plaintiff before this Court by filing the writ petition. The writ petition was eventually dismissed. Writ appeal was filed. The writ appeal is dismissed in the year 2006. 37. Aforementioned facts, are not disputed. It is apparent that the plaintiff had the benefit of an order passed by the Assistant Commissioner in the year 2005, who accepted his contention and certified the mutation based on the Will. This order was in force till the year 2009. 38. Though the contesting defendants denied the execution of the Will in the year 2004, the plaintiff, who is claiming right under the Will was pursuing his remedy to get his name entered in the property records based on the Will before the jurisdictional Revenue Authorities and from the year 2005 to 2009 and he had the benefit of the order of the Assistant Commissioner. During that period, there was no occasion for the plaintiff to approach the Court seeking the relief of declaration. During that period, there was no occasion for the plaintiff to approach the Court seeking the relief of declaration. Merely because the defendants denied the execution of the Will, the law does not compel the plaintiff to approach the Court to seek declaration relating to his title based on the Will, unless there is a serious threat to his possession or unless there is cause of action as distinguished from right of action to file a suit. The law does not compel the party to approach the Court merely because there is denial by one person where he denies the right of other party and asserts his own right. 39. This Court has also considered the judgment relied upon by Sri.Mrutyunjay Tata Bangi in RSA No.2638/2006. Relying upon the aforementioned judgment, learned counsel would contend that the suit of the plaintiff is barred by limitation. 40. In the aforementioned case, as could be noticed, the judgment was rendered in the second round of litigation. The first round of litigation commenced in the year 1966. In the said litigation, the Court has declared the title of the defendant. The matter came up to this Court. Before this Court the appeal was dismissed. However, liberty was granted to the plaintiff to seek appropriate relief. Based on the said observation/liberty, the plaintiff instituted one more case in the second round. Again the matter came up to this Court and in the aforementioned RSA No.2638/2006, this Court took a view that, merely because the liberty is granted, the limitation, which had begun to run and the period of limitation, which has expired, would not revive. 41. The distinguishing factor in this case is, in the first round of litigation, the title of the defendant in the said case was already declared and decree has attained finality. In that context, this Court has held that the second round of litigation based on the observation granting liberty to the plaintiff does not revive the limitation in favour of the plaintiff. In this case, it is to be noticed that, mere objection filed by the contesting defendants before the jurisdictional Revenue Court, where the dispute was relating to certification of mutation entry does not give a cause of action for the plaintiff to approach the Court. The cause of action to approach the Court arose in 2009 when the Deputy Commissioner passed the order. 42. The cause of action to approach the Court arose in 2009 when the Deputy Commissioner passed the order. 42. The cause of action to approach the Civil Court arose only after the disposal of the revision before the Deputy Commissioner, who directed that the names of the parties are to be entered in the property records. The suit is filed within three years after the disposal of the Revision Petition before the Deputy Commissioner. This Court is of the view that the cause of action to approach the Civil Court only after the disposal of the Revision Petition by the Deputy Commissioner and cause of action did not arise when the defendants raised the objection before the Tahasildar. 43. Under the circumstances, this Court is of the view that the suit is in time. 44. Hence the following: The judgment and decree dated 29.06.2015 passed in O.S.No.35/2011 on the file of the Senior Civil Judge, Saundatti, are confirmed. The appeal is dismissed.