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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 29 DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.222 OF 2013 (DEC)
BETWEEN:
1. S NAGARAJ DEAD BY LRS
SHIVAGANGAMMA
W/O LATE S. NAGARAJ
AGED ABOUT 49 YEARS
CHIKKAJAJURU VILLAGE
HOLALKERE TALUK
CHITRADURGA DISTRICT
2. SINDHU N,
D/O LATE S. NAGARAJ
AGED ABOUT 22 YEARS
R/AT CHIKKAJAJUR VILLAGE
HOLALKERE TALUK
CHITRADURGA DISTRICT - 23
Digitally
signed by R
3. PAVAN KUMAR N,
DEEPA
S/O LATE S. NAGARAJ
Location:
AGED ABOUT 20 YEARS
HIGH COURT
R/AT CHIKKAJAJUR VILLAGE
OF
KARNATAKA
HOLALKERE TALUK,
CHITRADURGA DISTRICT – 23
…APPELLANTS
(BY SRI. R.S. RAVI, SR. COUNSEL A/W
SRI. PRATHEEP K C, ADVOCATE)
AND:
1. SMT. HALAMMA,
W/O LATE ANNAIAH,
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SINCE DEAD BY HIS LR'S
2. PARVATHAMMA,
W/O BASAVARAJA
AGED ABOUT 52 YEARS
R/O V BLOCK, KSRTC DEPOT ROAD,
CHURCH EXTENSION
CHITRADURGA DISTRICT- 23
…RESPONDENTS
(BY SRI. N.R. JAGADEESHWARA, ADVOCATE FOR R2
VIDE ORDER DATED 06.02.2014 R2 IS ALREADY ON
RECORD SINCE R1 IS DECEASED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 20.10.2012 PASSED IN
R.A.NO.29/2010 ON THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL
PASSED AGAINST THE JUDGEMENT AND DECREE DTD
17.12.2009 PASSED IN OS.NO.86/2006 ON THE FILE OF II
ADDITIONAL CIVIL JUDGE (SR.DN.), CHITRADURGA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 20.10.2012
passed in R.A.No.29/2010 by the Prl. District and Sessions
Judge, Chitradurga, confirming the judgment and decree
dated 17.12.2009 passed in O.S.No.86/2006 by the II
Addl. Senior Civil Judge, Chitradurga.
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2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is the plaintiff and respondents are the
defendants. Plaintiffs filed a suit for declaration that the
plaintiff is entitled to get 1/2th share in the suit schedule
properties, partition and separate possession.
3. The brief facts leading rise to filing of this appeal
are as under:
It is the case of the plaintiff, that item Nos.1 to 3 suit
schedule properties are the joint family properties of
plaintiff's father namely Sannaiah, who succeeded to the
properties in a oral partition effected in family and out of
the income derived from item Nos.1 to 3 suit schedule
properties, item No.4 was acquired by the family in the
name of defendant No.1. After the death of Sannaiah, his
wife Halamma, plaintiff and defendant No.2 enjoying the
suit schedule properties as a member of Hindu Undivided
Family, plaintiff and defendants inherited and succeeded
the suit schedule properties. The plaintiff began to manage
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the entire affairs of the suit schedule properties and the
revenue and municipal records pertaining to the suit
schedule properties remained unchanged, as such the
plaintiff and defendants are in peaceful possession without
any interruption from anybody. It is contended that
recently, the defendants colluding with each other and to
cause a wrongful loss, on the basis of some created and
manipulated documents, started asserting the rights over
entire suit schedule properties. The plaintiff on verification
came to know that in the year 1996 on the basis of the will
alleged to have been executed by Sannaiah, defendant
No.2 got mutated the revenue and municipal records in
respect of item Nos.1 to 3 of suit schedule properties. It is
contended that the alleged will is void and late Sannaiah,
has no manner of right, title, possession or interest to
execute a will in the coparceners properties and defendant
No.2 has not acquired any right under the registered will
over the item Nos.1 to 3 of the suit schedule properties.
The plaintiff approached the defendants to effected
partition, but the defendants refused to effect partition.
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Hence, plaintiff filed suit for declaration, partition and
separate possession.
4. The defendant denying the averments made in
the plaint and it is contended that except admitting their
relationship with plaintiff and in turn defendants have
contended that plaintiff was given education upto PUC with
great difficulties. The plaintiff secured the employment in
the BTD Engineering college, Davangere as clerk and
neglected his father Sannaiah and went away relinquishing
all his rights over suit schedule properties. The plaintiff
never looked after or taken care of his father Sannaiah,
who died on 27.12.1998 at Chitradurga. The item No.1 of
the suit schedule property originally belonged to one
Govindamma d/o Hanumanthappa, since Govindamma
died issueless, the property devolved in favour of her
brothers namely Doddaiah and Sannaiah. The Sannaiah
got 1 acre 35 guntas of land towards Northern side and
same is give in favour of defendant No.2-Parvathamma
under the registered Will. Thus, suit item No.1 is not the
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ancestral or joint family property. Suit item No.2 property
came to Sannaiah under Darakath, which was bequeathed
in favour of defendant No.2. So also, Sannaiah had
purchased item No.3 out of his own earnings from
Govindamma under registered sale dated 08.03.1985.
5. Defendant No.1 purchased suit item No.4 under
the sale certificate dated 14.07.1988. The said item No.4
is the self acquired property of defendant No.1. The son-
in-law of defendant No.1 was taken care of Sannaiah, out
of love and affection Sannaiah bequeathed the suit item
Nos.1 to 3 of suit schedule properties under a registered
Will deed 16.02.1996 in favour of defendant No.2.
Defendant No.2 became the absolute owner of item Nos.1
to 3 of the suit schedule properties and enjoying the same
by paying land revenue to the authorities. Hence, prays to
dismiss the suit.
6. The trial Court, on the basis of the above said
pleadings, framed the following issues:
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1) "Whether the plaintiff proves that the suit
schedule properties are the ancestral and joint
family properties of himself and the defendant
and they inherited and succeeded to the
estate after the death of Sannaiah?
2) Whether the defendant prove that suit item
No.1 to 3 properties were the self acquired
properties of Sannaiah?
3) Whether defendant No.1 proves that suit item
No.4 property is her self acquired property?
4) Whether defendant 2 proves that she becomes
the lawful owner o suit item 1 to 3 properties
by virtue of will executed by Sannaiah dated
16.02.1996?
5) Whether plaintiff proves his entitle for
declaration and has share in the suit schedule
property by metes and bounds?
6) What decree or order?"
7. Plaintiff in order to prove his case, power of
attorney holder of the plaintiff was examined as PW1 and
examined one witness as PW2 and got marked 17
documents as Ex.P1 to P17. In rebuttal, defendant No.2
was examined as DW2 and examined 4 witnesses as DW1
and DW3 to DW5 and marked 12 documents as Ex.D1 to
D12.
8. The trial Court after assessment of oral and
documentary evidence of the parties, answered issue
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Nos.1 and 5 in Negative, issue Nos.2 to 4 in Affirmative
and issue No.6 as per the final order. The suit of the
plaintiff was dismissed.
9. The plaintiff aggrieved by the judgment and
decree passed by the trial Court preferred an appeal in
R.A.No.29/2010 on the file of Prl. District and Sessions
Judge, Chitradurga.
10. The First appellate Court, after hearing the
parties, has framed the following points for consideration:
1. “Is the learned trial judge right in holding that
the appellant is the legally wedded wife of the
plaintiff Nagaraj?
2. Whether the findings of the learned trial judge
that the plaintiff has not been able to prove that
the schedule properties are the ancestral and
joint family property are correct?
3. Whether the findings of the learned trial judge
that item Nos. 1 to 3 of the schedule were the
self acquired properties of Sannaiah and that
st
item No.4 is the self acquired property of the 1
defendant are correct?
4. Whether the findings of the learned trial judge
nd
that the 2 defendant had been able to prove
the will executed in her favour by her father are
correct?”
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11. The First appellate Court, on re-assessment of
oral and documentary evidence, answered points Nos.1 to
4 in the Affirmative and dismissed the appeal with costs.
12. The plaintiff aggrieved by the judgments and
decrees passed by the Courts below has filed the second
appeal.
13. Heard Sri R.S. Ravi, learned Senior counsel for
Sri Pratheep K.C., learned counsel the plaintiff and also
learned counsel for the defendants.
14. Learned Senior counsel for the plaintiff submits
that the Courts below have committed an error in passing
the impugned judgments. He submits that the defendants
have failed to prove the execution of alleged will and
further the Courts below placing reliance on the other will
the trial Court dismissed the suit of the plaintiff.
15. He further submits that DW4 has identified the
signature of the testator and he do not know who gave
instructions for drafting the Will and he do not remember
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who were all came to the office of sub registrar and he
further submits that DW.4 has not examined the names
reflecting in page No.183.
16. He also submits that the sub registrar officer
was not examined in order to prove the registration of the
Will and further mental conditions of the testator was not
explained. He submits that the defendants have not
examined the attesting witnesses to the registered Will
and he also submits that the Will is surrounded by
suspicious circumstances and in order to buttress his
argument he has placed reliance on the judgment of the
Hon'ble Apex Court in the case of Bharpur Singh and
Others vs Shamsher Singh reported in AIR (2009) SC
1766. Hence, on these grounds he prays to allow the
appeal.
17. Per contra, learned counsel for the defendants
submits that defendant No.2 has proved the Will and
further submits that in order to prove contents of the deed
defendant No.2 was examined as DW2 and also typist
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who, has typed the Will as DW5. He also submits that the
attesting witnesses are no more. Hence, examined the
scribe and also typist. He stated that the judgment and
decree passed by the First appellate Court is just and
proper and does not call for any interference. Hence,
prays for dismiss the appeal.
18. This Court admitted the appeal on 29.01.2020
to consider the appeal for following substantial question of
law:
"Whether the courts below were justified in
dismissing the suit for partition at the instance of
defendant No.2, who claimed to have succeeded to
the suit property by a Will – (Ex.D.3) without he
examining the attesting witness as provided under
Section 63 of the Indian Succession Act and under
Section 68 of the Indian Evidence Act?"
19. Heard and perused the records and considered
the submissions of the learned counsel for the parties.
20. Substantial question of Law: Plaintiff in order
prove his case examined his power of attorney holder as
PW1 and he has deposed that item Nos.1 to 3 of the suit
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schedule properties are the ancestral properties of the
joint family properties of plaintiff's father namely
Sannaiah, who succeeded to the properties in the oral
partition effected in the family and out of the income
derived from suit item Nos.1 to 3 properties, item No.4
was acquired by the family in the name of defendant
No.1. After the death of Sannaiah, the plaintiffs and
defendants are in joint possession and enjoyment of the
suit schedule properties and further they are the members
of Hindu undivided family.
21. It is also contended that the Sannaiah has no
right to execute the Will in respect of item Nos.1 to 3 of
suit schedule properties in favour of defendant No.2 and
defendant No.2 has not acquired any right over the item
Nos.1 to 3 by virtue of Will alleged to have been executed
by Sannaiah in favour of defendant No.2.
22. Further the plaintiff in order to prove that the
suit schedule properties are the ancestral and joint family
properties of plaintiff and defendants, has produced the
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documents marked as Ex.P1 is the RTC extract in respect
of land bearing Sy.No106 of the year 2005-06, the said
land stood in the name of Sannaiah and Jayamma, Ex.P2
is the RTC extract in respect of land bearing Sy.No.186 of
the year 2005-06, the said land stood in the name of
Parvathamma, Ex.P3 is the assessment extract of building
and lands in respect of property No.7674/6444, stands in
the name of Sannaiah, Ex.P4 is the assessment extract of
building and lands in respect of property No.4847/11606
stands in the name of defendant No.1, Ex.P5 is the copy of
the pension payment order which discloses that the
plaintiff is getting pension from Government of Karnataka,
Ex.P6 is the nomination list, Ex.P7 is the nomination from,
Ex.P8 is the copy of the mutation extract, Ex.P9 is the
certificate issued by the District hospital Chitradurga,
wherein, Nagaraj has made with an accident and suffered
an injury, Ex.P10 to P14 are the photographs, Ex.P15 is
the ration card which stood in the name of Nagaraj i.e.,
plaintiff, Ex.P16 and P17 are the certified copy of the order
passed in MC.No.22/1977, wherein, Shankarappa filed a
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petition for dissolution of Marriage against
Shivagangamma, the said petition came to be allowed vide
order dated 26.07.1978, Ex.P17 is the copy of the decree
passed in MC.No.22/1977.
23. In the course of cross examination of PW1 it is
elicited that her marriage was performed with the
Shankarappa as per the customs prevailed in their
community and further she also admitted that she has also
performed second marriage with Nagaraj as per the
customs prevailed in their community. It is elicited that
Nagaraj and DW1 belongs to Adi-Karnataka caste and her
father's home town is Haliyur in Chitradurga taluk,
Nagaraj's father Sannaiah lived in Chitradurga city, the
distance between the Haliyur and Chitradurga is about to
11 to 12 kilometers. Sannaiah's wife Halamma they were
alive at that time when they came to her house for
alliance. It is true that Sannaiah died in 27.12.1998. It is
true that after his retirement he lived with his wife in his
own house.
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24. From the perusal of the entire cross
examination of PW1, the entire cross examination is based
only on the customs ceremony performed at the time of
marriage and she has denied that she is not the wife of
Nagaraj and also denied that in order to grab the
properties of father and mother of Nagaraj, she is claiming
to be the wife of deceased Nagaraj.
25. Further plaintiff also examined one witness as
PW2, he has deposed that he knows the plaintiff and
defendants and he has seen suit schedule properties and
the suit schedule properties are the ancestral and joint
family properties of plaintiffs and defendants and further
the said properties are mutated. He has also stated that
the suit schedule properties belongs to plaintiff, his mother
and father and the joint family properties. After the
demise of Sannaiah, the said properties are devolved upon
the plaintiff.
26. In rebuttal defendant No.2 was examined as
DW1, she has reiterated the written statement averments
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in the examination in chief and in support of her
contention, she has produced documents, Ex.D1 is the
certified copy of the registered sale deed, Ex.D2 is the
Saguivail chit, Ex.D3 is the copy of the Will executed by
Sannaiah in favour of defendant No.2, Ex.D4 to D8 are the
RTC extracts, Ex.D9 is IHC, Ex.D10 is the certified copy of
the registered sale deed, Ex.D11 is the original sale
certificate, Ex.D12 is the certified copy of the execution
petition No.101/2003.
27. In the course of cross examination, it is denied
that suit schedule properties are the joint family properties
of Sannaiah and she has stated that she is not familiar
with plaintiff and admitted that Halamma was with her and
almost all 10 years, since from the death of her father and
father had a different house and use to live in the said
house and mother is still with her and parents are residing
with her since from her marriage. She also denied that she
had forced her father to create a document. Father use to
oblige her as she being the daughter and admit that a
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plaintiff got married to Shivagangamma and they have no
children. Further defendant also examined one witness
Parvathamma D/o one Shreekanthappa as DW2 and she
has deposed that she knows the plaintiff and defendants
and Shivagangamma and her elder sister name is
Chinnakka and her brother name is Shankrappa and
further defendants also examined one witness Basavraja
as DW3, he submits that the defendant No.2 is his wife
and defendant No.1 is his mother-in-law and plaintiff is the
brother of his wife and further it is the case of defendant
that Sannaiah has executed a Will bequeathing the item
Nos.1 to 3 of suit schedule properties in favour of
defendant No.2. DW4 is the scribe and DW5, who has
drafted the Will on the instructions of Sannaiah. The said
Will is marked as Ex.D3 and his signature is marked as
Ex.D3(a).
28. During the course of cross examination, DW5
admitted that he drafted several deeds. It is elicited that
he cannot say which documents he has written unless the
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said documents have seen and he does not remember the
father name of Sannaiah. He has deposed that on the
instructions of Sannaiah, he has drafted the Will, further in
the course of cross examination, it is denied that the said
Will was got created in collusion with defendant No.2 and
further DW5 has deposed that he has typed the will as per
the Ex.D3
29. In the course of cross examination, it is elicited
that he has not stated that the testator has signed in his
presence and he does not know how many persons were
presented at the time of Sannaiah giving instruction to the
DW4 and DW5 has typed the Ex.D3.
30. From the perusal of records it disclose that the
suit schedule properties were owned and possessed by
Sannaiah. It is the case of the defendants that Sannaiah
has executed a Will in favour of defendant No.2
bequeathing item Nos.1 to 3. Further the defendants have
filed a memo reporting the death of attesting witnesses.
The burden is on the defendants to prove execution of Will
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by Sannaiah in favour of defendant No.2. Further in the
instance case, both the attesting witnesses are dead and
no witnesses who are well acquainted with signature of
attesting witnesses, have been examined to prove the
attestation of the Will.
31. On the contrary, defendants are examined the
scribes as DW4 and DW5, who has typed the Ex.D3, the
evidence only shows the testator had executed a Will.
Defendants have not laid any evidence to establish that
the testator was in sound state of mind at the time of
execution of the Will. Further DW4 and DW5 have not
spoken about due attestation of the Will. Unless the
attestation of the Will is proved in accordance with law,
the will is not proved. The evidence on record do not
prove the attestation of the Will.
32. The trial court was not justified in holding that
the defendants have proved the execution of the Will i.e.,
Ex.D3 and committed an error in placing a reliance on the
said documents and further though, DW4 has identified
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the signatures of the attesters mere identification of the
signature and handwriting of the scribe will not prove that
the document was executed by executor and therefore,
the defendants have failed to prove execution of Ex.D3.
Whether from the evidence of DW4 and DW5 the
mandatory requirements of Section 69 of the Indian
Evidence Act, has been fulfilled, is the point for
consideration. Ex.D3 neither proved in terms of Section
68 nor Section 69 of the Indian Evidence Act. Though, the
provisions contemplate that if attesting witness cannot be
found or if the document purports to have been executed
then it must be proved that the attestation of one of the
attesting witness is in his handwriting and that the
signature of the person executed in the document is in the
handwriting of dead person.
33. The provisions contemplates that handwriting of
at least one attesting witness and the signature of the
person executed in the document is required to be
identified and proved through the witnesses. The proof of
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handwriting or the signature of the scribe is not the
stipulation under Section 69 of the Evidence Act. Hence,
the evidence of DW4 merely identified the handwriting and
also the signature of the scribe of Ex.D3 is of no legal
consequences and does not meet the stipulation under
Section 69 of the Evidence Act.
34. The Hon'ble Apex Court in the case of Moturu
Nalini Kanth Vs Gainedi Kaliprasad (dead through
Lrs) reported in (2023) SCC online SC 1488,
considering the provisions of Section 68 and 69 of the
Indian Evidence Act and placing reliance on one of the
judgment of Hon'ble Apex Court held as under para 32:
“32. For the purposes of Section 69 of the
Evidence Act, it is not enough to merely examine a
random witness who asserts that he saw the
attesting witness affix his signature in the Will. The
very purpose and objective of insisting upon
examination of at least one attesting witness to the
Will would be entirely lost if such requirement is
whittled down to just having a stray witness depose
that he saw the attesting witness sign the Will. The
evidence of the scribe of the disputed Will (PW 6)
also casts a doubt on the identity of the executant
as he specifically stated that a woman was sitting at
a distance but he could not tell whether she was
Venkubayamma and he could not also tell whether
Venkubayamma had signed the document. In effect,
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Ex. A10 Will was not proved in accordance with law
and it can have no legal consequence. Nalini Kanth's
claim of absolute right and title over
Venkubayamma's properties on the strength thereof
has, therefore, no legs to stand upon and is liable to
be rejected.”
35. From the perusal of evidence of DW4 and DW5
have not deposed that the attesting witnesses have affixed
their signatures in the Will and also the testator. The
defendants have failed to prove the execution of a Will.
Though, the Ex.D3 is the registered document, mere
registration would not satisfy a document by attaching to
it an irritable presumption of genuineness and further in
order to prove, it is well established principles of law that
for a Will to be proved as a genuine, it must complied with
a requirements prescribed in the Indian Evidence Act,
1872 and Indian Succession Act, 1925, in arriving at its
decision the Hon'ble Apex Court in the case of Dhani Ram
(Died) Through Lrs. and Others Vs. Shiv Singh
(Dhani Ram) reported in 2023 SCC online SC 1263 in
Civil Appeal No.8172/2009 disposed of on 06.10.2023,
mere registration of Will would not be sufficient to prove
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its validity as its lawful execution, necessarily has to be
proved in accordance with Section 68 of Indian Evidence
Act and 63 of Indian Succession Act.
36. In view of the above discussion the Courts
below have committed an error in passing impugned
judgments. The impugned judgments passed by the
Courts below are arbitrary and erroneous.
37. In view of the above discussion, I answered
substantial question in the Negative. Hence, I proceed to
pass the following:
ORDER
i. Appeal is allowed.
ii. The impugned judgment and decree dated
20.10.2012 passed in RA No.29/2010 by the
Prl. District and Sessions Judge, Chitradurga
and also judgment and decree dated
17.12.2009 passed in O.S.No.86/2006 by
the II Addl. Senior Civil Judge, Chitradurga
are set aside.
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iii. Suit of the plaintiff is decreed.
iv. The plaintiff is entitle for ½ share in the suit
schedule properties by metes and bounds.
v. Draw preliminary decree, accordingly.
vi. No order as to the costs.
In view of the disposal of the appeal, IA No.3/2013
does not survive for consideration.
Sd/-
JUDGE
AT
CT:KHV