IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 01 st DAY OF APRIL 2013 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR R.F.A.No.2/2010 BETWEEN: REGULAR FIRST APPEAL NO.2/2010 C/W. REGULAR FIRST APPEAL NO.204/2010 SRI. R.K. MADHVESH S/O. V.K.KRISHNACHAR MAJOR R/A NO.24, II BLOCK THYAGARAJANAGAR BANGALORE 28. APPELLANT (BY SRI. SUBRAMANYA JOIS, SR. ADV., FOR SRI. K.C.SHANTHA KUMAR, ADV.,) AND: 1. SRI. R.K. BHEEMASENACHAR S/O. V.K. KRISHNACHAR MAJOR R/A NO.81/B, H.B.SAMAJA ROAD GANDHI BAZAAR BANGALORE 4.

2 2 2. V.K.KRISHNACHAR S/O. LATE RANGACHAR AGED ABOUT 76 YEARS NO.24, II BLOCK, THYAGARAJANAGAR BANGALORE. SINCE DECEASED BY L.Rs. (a) R.VIJAYAKUMAR S/O. LATE ANANTHA MURTHY AGED ABOUT 53 YEARS R/O. 85/130, GUNDAPPA ROAD BASAVANAGUDI, BANGALORE (b) SMT. R.VIJAYALAKHMI AGED ABOUT 51 YEARS RESIDING AT 85/130, GUNDAPPA ROAD BASAVANAGUDI, BANGALORE (c) SRI. R. MOHAN KUMAR S/O. LATE ANANTHA MURTHY AGED 49 YEARS RESIDING AT NO.110, FLAT NO.26 CANARA BANK APARTMENT V.V.PURAM, BANGALORE SMT. H.G.SHANTHA MAJOR D/O. LATE V.K.KRISHNACHAR R/O. DOOR NO.29, II CROSS HMT LAYOUT, MATHIKERE BANGALORE

3 3 4. SMT. PUSHPAVATHI MAJOR WIDOW OF LATE R.K.SESHACHAR 5. MS. R.S.VIJAYA MAJOR D/O. R.K.SESHACHAR 6. SRI. R.S.VENKATESH MAJOR S/O. LATE R.K.SESHACHAR RESPONDENTS 4 TO 6 ARE RESIDING AT NO.25/1, PARAMAHAMSA ROAD 2 ND BLOCK, T.R.NAGAR BANGALORE SRI.T.R.DEVARAJ S/O. LATE T.C.RAMASWAMY AGED ABOUT 51 YEARS R/O. 90, 6 TH CROSS ASHOKNAGAR BASAVANAGUDI, BANGALORE RESPONDENTS (BY SRI.DEEPASHREE, ADV., FOR R.3, R.2 (1,2,3), SMT. VIDYA JAHAGIRDAR, ADV., FOR R.4 TO R.6 SRI. U.B.SHIVAKUMAR, ADV., FOR R.7 SRI. H.L.RAMESH, ADV., FOR R.1) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN O.S.NO.3754/1987 ON THE FILE OF THE I ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH- 2), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

4 4 R.F.A.NO.204/2010 BETWEEN: 1. H.G.VIJAYAVANI D/O. LATE KRISHNACHAR AGED 72 YEARS GOVINDAPPA ROAD BASAVANAGUDI BANGALORE 4. SINCE DEAD BY HER L.Rs 1(a) R.VIJAYA KUMAR S/O. R.ANANTHA MURTHY AGED ABOUT 54 YEARS R/A 43, 44-73, 3 RD MAIN 1 ST CROSS, UDAYANAGAR BAGNALORE (b) R.VIJAYALAKSHMI W/O. LATE NAGARAJ AGED ABOUT 53 YEARS R/A 130, OUTHOUSE GOVINDAPPA ROAD BASAVANAGUDI BANGALORE 4. 1(c) R.MOHAN KUMAR S/O. LATE R. ANANTHA KUMAR AGED ABOUT 51 YEARS R/NO.,110, CANARA BANK APARTMENTS FLAT NO.26, DIAGONAL ROAD V.V.PURAM, BANGALORE

5 5 2. H.G.SHANTHA W/O. GOPALACHAR AGED 69 YEARS 29, II CROSS, HMT LAYOUT MATHIKERE, BANGALORE APPELLANTS (BY SMT. DEEPASHREE, ADV., ADV.,) AND: 1. R.K. BHEEMASENACHAR MAJOR, S/O. LATE V.K.KRISHNACHAR R/AT NO.81/B, H.B.SAMAJA ROAD GANDHI BAZAAR BANGALORE S.PUSHPAVATHI, MAJOR W/O. R.K. SESHACHAR 3. R.S.VIDYA, MAJOR D/O. LATE R.K.SESHACHAR. 4. R.S.VENKATESH, MAJOR S/O. LATE R.K.SESHACHAR. RESPONDENTS 2 TO 4 ARE ALL RESIDING AT NO.25/1 THYAGARAJANAGAR BANGALORE R.K. MADHWESH MAJOR S/O. LATE V.K. KRISHNACHAR R/A R.A.NO.24, II BLOCK

6 6 THYAGARAJANAGAR BANGALORE RESPONDENTS (BY SMT.VIDYA JAHAGIRDAR, ADV., FOR R.2, R.3 AND R.4, SRI. R.VIJAYKUMAR, ADV., FOR R.1 SRI. K.C.SHANTAKUMAR, ADV., FOR R.5 THIS RFA IS FILED UNDER SECTION 96 R/W. ORDER XLI RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN O.S.NO.3754/1987 ON THE FILE OF THE I ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-2), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THESE APPEALS ARE COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:- J U D G M E N T These two appeals are filed by fifth defendant and defendant Nos.1(a), 1(b) questioning the correctness and legality of judgment and decree passed by First Additional City Civil and Sessions Judge, Bangalore, in O.S.No.3754/1987 dated , whereunder, suit for partition has been decreed in part and it is ordered and decreed that plaintiff is entitled for 1/5 th share and separate possession in Schedule Nos.1 to 3 and Item Nos.I to IV of

7 7 Schedule No.4 of the suit schedule properties. It has also been decreed that defendant Nos.2 to 4 together are entitled for 1/5 th share and separate possession in the said properties, subject to payment of Court fee. The claim of the plaintiffs in respect of partition of schedule No.2 and Item No.VII of Schedule No.4 property, for rendering of accounts and granting of injunction against defendant No.1 has been dismissed. Insofar as the dismissal of the suit as noted hereinabove, matter has reached finality since there is no challenge to the same by the plaintiffs. 2. RFA No.2/2010 is filed by fifth defendant and RFA No.204/2010 is filed by defendant Nos.1(a) and 1(b). During the pendency of the present appeal, defendant No.1 expired and her legal heirs have been brought on record as appellants R(1)(a), R(1)(b) and R(1)(c). 3. Heard Sri.Subramanya Jois, learned senior counsel appearing for the appellant in RFA No.2/2010,

8 8 Smt.Deepashree, learned counsel appearing for the appellants in RFA No.204/2010, Smt.Vidya Jahagirdar, learned counsel appearing for respondent Nos.4 to 6 in RFA No.2/2010 and for Respondent Nos.2, 3 and 4 in RFA No.204/2010, and Sri.R.Vijayakumar, learned counsel appearing on behalf of the plaintiff i.e., respondent No.1 in both the appeals and Sri.V.B.Shivakumar, learned counsel appearing for R7 in extenso. 4. Perused the judgment and decree passed by the trial Court. Parties are referred to as per their ranking in trial Court. 5. It is the contention of Sri.Subramanya Jois, learned senior counsel appearing on behalf of 5 th defendant that trial Court has committed a serious error in dismissing the claim of 5 th defendant who was originally arrayed as second plaintiff, without considering the pleadings and evidence tendered by 5 th defendant in proper perspective. He would fairly submit that though the contention has been

9 9 raised with regard to the maintainability of the suit for want of territorial jurisdiction, said ground would recede to background in view of the settled law and also in view of the fact that Item No.III of the suit schedule property is located within the territorial jurisdiction of the City Civil Court, Bangalore and in view of the fact that parties to the lis are residents of Bangalore. Assailing the impugned judgment and decree passed by the trial Court he would contend that evidence available on record would indicate that Item No.III property was acquired by the father of fifth defendant during the lifetime of his father Sri.Rangacharya in the year 1949 itself, and he bequeathed the same in favour of 5 th defendant (second plaintiff) under a Will dated and as such, trial Court could not have held that Item No.III property acquired by the defendant is not his self earned property. He would also draw the attention of the Court to the written statement filed by first defendant himself whereunder, he had taken a specific stand that Item No.III of the suit schedule property is his self acquired property, as such, he

10 10 submits that trial Court could not have over looked this material evidence available on record and hence, judgment and decree passed by the trial court is erroneous. He would also contend that tenor of the cross-examination of defendant No.5 would indicate that Item No.III of suit schedule property was self acquired property of Krishnachar (first defendant) and as such, said Krishnachar under Will dated had bequeathed the same in favour of 5 th defendant which could not have been doubted by trial Court particularly, in the background of said Will dated having been probated by the Jurisdictional Court in P&SC No.210/2002 and the same having not been revoked could not have been doubted and as such, he contends that finding recorded by the trial court with regard to the Will dated is erroneous and liable to be set aside. He would also contend that findings recorded by the trial Court with regard to income of the first defendant is contrary to the records and the evidence, inasmuch as apart from being a Sanskrit teacher late Krishnachar was also conducting pravachanas

11 11 and performing marriages as a purohit and by virtue of such activities he was earning sufficient income and as such, he was capable of purchasing Item No.III of suit schedule property. Hence, it was his self acquired property and it was only the conclusion which could have been drawn by the trial Court particularly when first defendant himself has stated so in his written statement and non-consideration of this evidence by trial Court has resulted in passing of erroneous judgment. He would also contend that in the suit filed by Krishnachar in O.S.No.1411/1986, he has specifically pleaded that said property was his self acquisition and same has been reiterated in the written statement in the present suit and as such, he had a right to dispose of said property by testamentary disposition. He would further contend that Will dated was not surrounded with any suspicion and finding recorded by the Trial Court in this regard is erroneous. He would submit that witnesses to the Will could not be examined since one of the witness Lakkanna had expired and to establish the signature of another witness,

12 12 fifth defendant had examined two witnesses by name Sri.Ramanna and Sri.Somashekar as DWs.6 and 7, who testified the signature of the scribe found on the said Will and they being the best persons to identify the signatures of the witness and scribe they had identified the signature of Bettaiah and as such, non-examination of witnesses was not fatal to disbelieve the version of the 5 th defendant. To identify the signature of Krishnachar and one of the witness to the Will dated DW.6- Ramanna was examined and he has identified the signature of Krishnachar and Lakanna found in the Will dated Hence, he contends 5 th defendant had proved due execution of the Will, which was also corroborated by producing the certified copy of the order of probate issued by the Jurisdictional and Competent Court, which order was passed in P&SC No.210/2002 and marked as Ex.D.5. He would also submit that on mere suspicion the genuineness of the Will cannot be doubted particularly when there is other corroborative and cogent evidence available on record to accept the version of 5 th defendant. He would also

13 13 submit that trial court has committed a serious error in drawing an adverse inference against 5 th defendant for not producing the original Will when admittedly the same has been produced before the Probate Court in P&SC 210/2002. As such, secondary evidence tendered by the 5 th defendant was admissible and same ought to have been accepted by Trial Court. On these grounds he would seek for setting aside the judgment and decree passed by the trial court and prays for answering the additional issue framed by trial Court in favour of 5 th defendant and by holding the Will dated Exhibit D-4 propounded by 5 th defendant as having been duly proved and suit be decreed in favour of fifth defendant, by allowing the appeal in RFA 2/2010 and setting aside the judgment and decree passed by the trial court. 6. Per contra, Smt.Deepashree, learned counsel appearing for defendants 1(a) and 1(b) would also assail the judgment and decree passed by trial court in O.S.3754/1987 and contends that same be set aside for the reasons and

14 14 grounds urged in support of their submission as specifically contended in RFA 204/2010 and the Will propounded by these defendants dated Exhibit D-1 be held to have been duly proved and appeal be allowed by setting aside the said judgment and decree passed by trial Court and declare that Will dated Ex.D.1 prevails to be effective over any other Will including the one propounded by 5 th defendant. In support of her submission she would contend that the witnesses to the Will Exhibit D-1 have been duly examined and it was the specific case of Sri.Krishnachar that schedule III of suit schedule property was his self acquired property and facts would clearly indicate that in the written statement filed in the present suit he had asserted that it is his self acquired property and undisputedly he had filed a suit against his sons in O.S.1411/1986 asserting that schedule III of suit schedule property is his self acquired property and his sons i.e., defendants in the said suit have no manner of right, title and interest over the same and as such, she contends that trial court committed a serious error in

15 15 brushing aside the said material evidence available on record which calls for interference at the hands of this court. She submits that on the very next date of filing of O.S.1411/86 a Will came to be executed by late Sri.Krishnachar on as per Exhibit D-1 and said Sri.Krishnachar expired on and said suit came to be dismissed for default on and later came to be restored on and appellants in RFA 204/2010 namely Smt.H.G.Vijayavani and Smt.H.G.Shantha were brought on record on before the Trial court and during the pendency of suit Will dated came to be produced on and marked as Exhibit D-1. She contends that the attestors to said Will dated Exhibit D-1 namely Sriyuths Simhadri and H.S.V.Rao have been examined as DW-2 and DW-3, respectively and they admit due execution of said Will by deceased Sri.Krishnachar in favour of defendants 1(a) and 1(b) and they having affixed their signatures in the presence of executant and when the attestors of the Will have admitted the execution of Will and in their cross examination their

16 16 statements having not been shaken, trial Court ought to have accepted due execution of Will Exhibit D-1. She would also draw the attention of the court to admission of the plaintiff in his cross examination about the Will Ex.D.1 executed in favour of his daughters and grand daughter particularly to the cross examination dated to contend that even plaintiff was also aware of execution of Will Ex.D.1, whereunder late Krishnachar had bequeathed schedule III property in favour of his daughters and grand daughter. She would also contend that everyone in the family had knowledge about the Will Exhibit D-1 having been executed by Krishnachar and she contends that there was no nucleus or joint family fund which was available to the deceased Sri.Krishnachar to purchase schedule III property and he had purchased the same out of his own earnings as he was a Purohit by profession conducting Vedanta classes and Pravachanas and also performing marriages by conducting the same as purohit and as such he was getting sufficient income of his own out of which he purchased

17 17 schedule III property and burden was cast on the plaintiff to demonstrate and prove that there was existence of joint family nucleus which has not been established and in the absence thereof no inference can be drawn about existence of joint family and even evidence available on record would indicate that about 40 years prior to the date of filing suit first defendant had left the native village and settled down at Bangalore and carried on the profession as above said and as such he was having his own individual perennial income which formed the nucleus to purchase schedule III property and as such the conclusion arrived at by trial court that schedule III property is purchased out of joint family funds or that defendants 1(a) and 1(b) have failed to prove the execution of Will is erroneous, contrary to record and material evidence available on record and as such she seeks for setting aside said judgment and decree by allowing the appeal filed by appellant in RFA 204/2010. She would also draw the attention of this court to cross examination of fifth defendant (who was initially the second plaintiff) namely cross

18 18 examination dated whereunder he admits that under Exhibit D-1 late Sri.Krishnachar had given some of the properties to grand daughter who is the daughter of defendant No.1(b) and who is a medical graduate and contends that this would clearly go to show the execution and existence of Will Exhibit D-1 even to the knowledge of 5 th defendant and in view of the fact that 5 th defendant had failed to examine the attestors to the said Will namely Exhibit D-4 and in view of the fact that attestors of Exhibit D-1 having been examined the Will propounded by appellants in RFA 204/2010 has to be held to have been duly proved. She would also contend that potentiality of tenanted agricultural lands were of such nature that it would not yield any income and as such trial Court could not have arrived at a conclusion that Schedule III property was purchased out of joint family funds. She also contends that existence of dispute between the father and sons would clearly indicate that there was no possibility of deceased Sri.Krishnachar having executed the Will in favour of his son Sri.Madvesh but on the other hand

19 19 the possibility of he having executed a Will in favour of daughters was strong and same should have been accepted particularly in the background of evidence tendered by defendants 1(a) and 1(b). On these grounds she submits that appeal filed by defendants 1(a) and 1(b) namely RFA 204/2010 be allowed by holding that Will dated Ex.D.4 prevails over Ex.D.1 and to be effective. To the repeated question of this court as to whether she has any other ground to be urged, she has submitted before court that there are no other grounds to be urged by her other than what is now contended. Hence, her submission has been placed on record. 7. Sriyuths R.Vijay Kumar and Sri.Ramesh, learned advocates appearing for first plaintiff in respective appeals would support the judgment and decree of the trial Court to the extent of conclusion arrived at by trial court that both the Wills namely Exhibit D-1 and Exhibit D-4 are not duly proved and would hasten to add that if said judgment and decree

20 20 passed by trial court to the extent of disbelieving both the Wills propounded by respective parties are accepted then shares allotted or suit decreed allotting 1/5 th share to first plaintiff requires to be modified in view of the fact that property would have to be treated as joint family property and each of the branch will be getting 1/4 th share namely three sons of Sri.Krishnachar and one share to Krishnachar himself since notional partition will have to be made and subsequent to the demise of Sri.Krishnachar notional partition has to done out of 1/4 th share and as such the three sons would get 1/4 th + 1/20 th share or 6/20 th share namely to the first plaintiff, fifth defendant and defendants 2 to 4 representing the branch of Sri.Seshachar would get jointly 6/20 th share and defendants 1(a) and 1(b) representing the branch of Sri.Krishnachar would get 1/10 th share each. As such they pray for suitable and modified judgment and decree being passed in this regard.

21 21 8. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by trial court as well as perusal of the records secured from trial court, I am of the considered view that following points would arise for my consideration: 1. Whether Judgment and decree passed by trial court disbelieving the Wills dated Exhibit D-1 and Exhibit D-4 propounded by defendants 1(a), 1(b) and 5 th defendant respectively is to be reversed or affirmed? OR Whether the trial court was in error in disbelieving the Wills dated Exhibit D-1 and Exhibit D-4 on account of erroneous appreciation of evidence or finding recorded by trial court thereon is contrary to material evidence available on record calling for interference?

22 22 2. Whether trial court was justified in holding schedule III property is a joint family property and not self acquired property of deceased first defendant? 3. Whether the trial court was correct and justified in decreeing the suit by ordering or decreeing 1/5 th share in favour of plaintiff? And, if answer is in the negative, to what shares the parties to the suit are entitled to? 9. For better understanding and appreciation of facts, it would be necessary to know the relationship between the parties to the lis and as such it would be appropriate to extract the genealogical tree of the family of Sri.Krishnachar, which is as under: Krishnachar (1 st defendant) Bheemasenachar R.K.Seshachar R.K.Madhvesh Vijayavani H.G.Shantha (1 st Plaintiff) since deceased (5 th defendant (deft.1(a) (deft.1(b) 2 nd plaintiff) Pushpavathi Wife R.S.Vijaya -Daughter R.S.Venkatesh- son (Defendants 2, 3 & 4)

23 23 Parties during the course of discussion are referred to as per their ranking in the trial court. 10. Initially the suit in question namely O.S.3754/87 was filed by two persons namely Sri.Bheemasenachar and Sri.R.K.Madhvesh. During the pendency of the suit first defendant Sri.Krishnachar expired on and his legal representatives were brought on record on Immediately thereafter second plaintiff filed an application for getting himself transposed as 5 th defendant and said application came to be allowed on and records of trial court would indicate that second plaintiff was transposed as 5 th defendant on Though original plaint has not been amended as was required typed copy of amended plaint would indicate that necessary amendment has been carried out and second plaintiff as such came to be arrayed as 5 th defendant. Suit in question was filed for partition and separate possession by metes and bounds and allotting 1/4 th share to each of the plaintiff and to put them in separate

24 24 possession of their shares. The properties described to the plaint would indicate four schedules were sought to be partitioned and schedule I and schedule III are immovable properties and schedule II and schedule IV are movable like gold silver, bank accounts, deposits etc. Dispute between the parties who are none other than uterine brothers and sisters revolves around schedule III property obviously on account of potentiality of the said property having increased enormously. Thus, bone of contention between parties have been on schedule III property. 11. Pleadings of the parties would indicate that plaintiffs 1 and 2 initially contended that suit schedule properties are joint family properties and it was being treated as such by all the joint family members namely by Sri.Krishnachar and his sons. It is the sum and substance of the plaintiff contention. As against this pleading first defendant who is the father of plaintiffs 1 and 2 appeared before trial court and filed his written statement controverting

25 25 the averments made in the plaint. He asserted that schedule III property is his self acquired property and it is not purchased out of joint family funds and after he migrated to Bangalore 40 years back prior to filing of the suit he had purchased the Schedule III property out of his own earnings and at no point of time plaintiffs namely his sons had assisted him in either purchasing the property since they were all minors at the time of purchasing it nor they had contributed any amount towards construction of the suit property which was stage by stage. On these grounds he asserted it is his self acquired property by filing written statement on Suit in question came to be filed on During the pendency of suit Sri.Krishnachar (Defendant No.1) died on within two months thereafter suit came to be dismissed for default i.e., Thereafter, it came to be restored on His daughters Smt. Vijayavani and Smt.H.G.Shantha were brought on record as his Legal representatives. It would be appropriate to mention at this juncture that there was no

26 26 additional written statement filed by defendants 1(a) and 1(b) after coming on record as legal representatives of deceased Sri.Krishnachar on Thereafter 1 st plaintiff filed an application to get second plaintiff transposed as fifth defendant by filing a separate application and contending that he was not keeping good health and as such could not lead evidence and on account of 2 nd plaintiff not attending to the case it got dismissed and later at his instance (1 st plaintiff) suit got restored and 2 nd plaintiff is no more interested to sail with 1 st plaintiff and had joined hands with defendants 1 to 4 and as such he sought for transposing 2 nd plaintiff as 5 th defendant. Said application came to be allowed by order dated thereafter 5 th defendant filed his written statement on contending his father Krishnachar- 1 st defendant had executed a Registered Will dated bequeathing, Schedule III property in his favour and as such 1 st plaintiff and defendant Nos. 2 to 4 are not entitled to claim any share in the said property. On the basis

27 27 of the pleadings of the parties, trial court framed following issues for its adjudication: 1. Whether the plaintiff proves that suit item No.3 property is a joint family property? 2. Whether the plaintiff proves that, he is entitled for 1/4 th share in the suit schedule property? 3. Whether the defendant proves that, suit schedule item No.3 is the self-acquired property of the first defendant, as contended in written statement? 4. Whether plaintiff is entitled for the relief of permanent injunction? 5. To hear what Order or decree? Additional Issue: 1. Whether the defendant No.5 proves that his father defendant No.1 executed a Will dated and bequeathed the suit schedule No.III of the property in his favour?

28 First plaintiff got himself examined as PW-1 and got marked Exhibits P-1 to P-8. Defendant No.1(b) Smt.Shantha entered the witness box got herself examined on her behalf and also on behalf of defendant 1(b) as DW-1. Defendants 1(a) and 1(b) also examined the attesting witnesses to the Will Exhibit D-1 as DW-2 and DW-3. Second defendant got herself examined as DW-5. Fifth defendant got himself examined as DW-4. Two witnesses were examined on his behalf in support of the Will propounded by him dated Ex.D.4 as DW-6 and DW-7 and defendants in all got produced 17 documents and got them marked as Exhibits D-1 to D-17. Trial court on appreciation of evidence on record and considering the arguments advanced by respective learned advocates appearing for the parties by its judgment and decree dated decreed the suit and held that plaintiff is entitled for 1/5 th share and separate possession in schedule I and III property and item Nos.I to VI of schedule IV of suit schedule properties. Similarly defendants 2 to 4 were held to be entitled to 1/5 th share and separate possession in

29 29 respect of said properties. It was held that till partition was affected parties are restrained from withdrawing any amounts shown in item Nos.I to V of schedule 4 of suit schedule properties. Schedule I of suit schedule property was ordered to be partitioned as per provisions of Section 54 of C.P.C and Schedule No.III and item No s.i to VI of Schedule No.4 property was ordered to be partitioned by appointing a Court Commissioner. Prayer in respect of schedule No.2 and item No.VII of schedule 4 property including rendering of accounts and granting of injunction against defendant No.1 came to be dismissed. FINDINGS RECORDED BY TRIAL COURT: 13. Issue Nos.1 and 3 relates to schedule III of suit schedule property and burden was cast on the respective parties asserting their title to the property namely plaintiff having asserted that it is a joint family property burden was cast on him to prove said issue No.1. Since defendants contended that said property was self acquired property of

30 30 Sri.V.K.Krishnachar (1 st defendant) burden was cast on them to establish the same. While answering these two issues namely issue Nos. 1 and 3 trial court found that first defendant was getting a meager salary of Rs.5/- per month in the year 1945 and as per Exhibit P-2 suit schedule property having been purchased in the year 1949 concluded that there was sufficient income for the deceased Sri.Krishnachar to purchase Schedule III property out of his own funds and as such trial court came to a conclusion that first defendant (subsequently defendants 1(a) and 1(b) had failed to establish that first defendant had sufficient income at the time of purchasing Schedule III property. At the same time examining the contention of plaintiff about there being joint family nucleus available to the first defendant to purchase suit Schedule III property was of the view that he had sold certain properties belonging to joint family and income was being generated from schedule I property at the time of purchasing Schedule III property and as such it held that defendants had failed to prove and establish that 1 st

31 31 defendant had separate, independent income available to him to purchase Schedule III property and it came to a conclusion that schedule III property was purchased from out of the sale proceeds of other ancestral properties. It also held that till the year 1965 all the six members of 1 st defendant were in joint family as admitted by PW-1 himself in his cross examination, and Suit schedule III property was purchased in the year 1949 when the joint family was existing and as such income generated from schedule I property first defendant had pooled said amount to purchase Schedule III property. Trial court also came to a conclusion that at the time of putting up construction in schedule III Property sons of Sri.Krishnachar were earning and they had also contributed amounts to put up construction over schedule III property and this aspect having not been disputed, it held that 1 st defendant s son had also contributed for putting-up construction in Schedule-III property. Trial court also came to a conclusion at the time of construction being put up in schedule III property that first defendant had no other income

32 32 except salary income and said salary income was not even sufficient to maintain his family. Though first defendant had asserted that said construction was put up by him from out of his own income trial court found that defendants had not produced any evidence to show the exact income at the time of construction of super structure in schedule III property. Thereby trial court came to the conclusion that construction put up by first defendant is also out of joint family funds. On these grounds trial court arrived at a conclusion that schedule III property is a joint family property and it is not purchased by first defendant out of his own earnings. Self serving testimony of defendants 1(a) and 1(b) was discarded by trial court namely with regard to their assertion that schedule III property was the self acquired property of their father on two grounds namely; (1) they had not filed the written statement and (2) they had not established by producing any evidence to the effect that deceased Sri.Krishnachar namely their father had separate and independent source of income and said income was sufficient

33 33 enough to purchase schedule III property or to put up construction thereon. Trial court also took note of the fact that inconsistent stand by fifth defendant requires to be examined for the purpose of rejection inasmuch as second plaintiff initially who asserted Schedule III property was joint family subsequently when he was transposed as fifth defendant he asserted that Schedule III property was the self acquired property of deceased Sri.Krishnachar and it took note of the written statement filed in O.S.1411/86 by fifth defendant along with first plaintiff whereunder they had contended that schedule III property is the joint family property. As such it did not accept the contention of fifth defendant that schedule III property is not a joint family property. Accordingly it answered issue Nos.1 and 3 by concluding that suit schedule property is the joint family property. 14. Insofar as two Wills propounded by respective parties namely Will dated Exhibit D-4

34 34 propounded by fifth defendant (Sri.Madvesh who was initially second plaintiff) came to be rejected on the ground that attestors/witnesses to the alleged Will were not examined and even the scribe was also not examined and also on account of non production of original Will. On these grounds trial court did not accept the contention of fifth defendant and as such Will propounded by fifth defendant was not accepted by trial court and it came to be discarded. 15. Insofar as Will alleged to have been executed by first defendant in favour of defendants 1(a) and 1(b) trial court held that there was no pleading by defendants 1(a) and 1(b) namely no written statement had been filed by them asserting that their father had executed the Will dated Ex.D.1 in their favour and in the absence of any pleading oral evidence cannot be eschewed. Even otherwise it independently examined the evidence tendered by defendant 1(b) and found that in the cross examination she had admitted that she was present at the time of execution of Will

35 35 by her father and at that point of time there was dispute between parties relating to suit schedule property and Will propounded by them is an outcome of the said dispute. Evidence came to be discussed thread bare by this Court and it was held that said Will cannot be accepted. Evidence of DW-2 was scrutinized by trial court and it found that he had stated in his evidence that the Will Ex.D-1 was in Kannada language and admittedly said Will was in English language and as such, his evidence was not accepted. Hence, trial court did not accept the Will dated Ex.D-1 propounded by defendants 1(a) and 1(b) also. On these grounds trial court rejected the contentions of defendants 1(a) and 1(b) also. Thereafter trial court has taken note of section 6 of Hindu Succession (Amendment) Act and decision rendered by Hon ble Apex Court in 2008 AIR SCW 3435 to hold that the plaintiff is entitled to 1/5 th share and daughters also being co-parceners they are also entitled to share in the joint family properties.

36 36 RE: POINT NO.1: 16. As noticed herein above at the cost of repetition parties to the lis namely second plaintiff (originally) fifth defendant on the one hand is asserting his right to schedule III property by propounding the Will dated which came to be marked as Exhibit D-4. On the other hand daughters of Sri.Krishnachar namely Smt.Vijayavani and Smt.Shantha are asserting their right to schedule III property on the strength of a Will dated Exhibit D-1 executed by their father Sri.Krishnachar. It is in this background point No.1 has been formulated and as noted herein above trial court has not accepted both the Wills. As to whether said finding recorded by trial court is contrary to material evidence both oral and documentary is being examined by this court on reappreciation of entire evidence available on record. 17. Fifth defendant who is propounder of Will Exhibit D-4 was originally second plaintiff. Suit in question was filed on Second plaintiff got transposed as fifth

37 37 defendant on Thus pleadings would clearly indicate that till the date he got transposed as fifth defendant he was asserting that Schedule III property is a joint family property and only on demise of his father Sri.Krishnachar, first defendant on he suddenly changes his version and asserts that schedule III property is self acquired property of late Sri.Krishnachar giving a complete go by to his own pleadings. Application was filed by 1 st plaintiff Sri.Bheemasenachar to transpose second plaintiff as fifth defendant contending interalia that suit had been dismissed for default on and to file miscellaneous petition second plaintiff did not co-operate with him and sequential events depict that second plaintiff was switching his loyalty in favour of other defendants and as such first plaintiff sought for transposition of second plaintiff as fifth defendant. On application came to be allowed. Thereafter, fifth defendant filed his written statement on Perusal of said written statement would clearly indicate that by virtue of Will dated being propounded by him he

38 38 contended that schedule III property was the self acquired property of first defendant. Averments made in the written statement filed on would not indicate that fifth defendant having withdrawn the averments made in the plaint or he has not made attempts seeking deletion of other averments made in the plaint whereunder he had contended that schedule III property is the joint family property. Thus, two inconsistent pleas of 5 th defendant is available on record. 18. First defendant Sri.Krishnachar i.e., father of both the plaintiffs 1 and 2 filed his written statement on Undisputedly at the time he filed the written statement even according to defendants 1(a) and 1(b) Will dated had already come into existence. If it were to be so, nothing prevented the first defendant Sri.Krishnachar to specify or to state in his written statement about the Will having already been executed by him in favour of his daughters on as per Exhibit D-1. There is not a whisper in the written statement about execution of Exhibit D-1. Eight

39 39 years thereafter i.e., said Krishnachar expired. Within two months thereafter i.e., suit came to be dismissed for default. Misc. Petition No.259/97 was filed by first plaintiff alone i.e., Sri. Bheemasenachar and same came to be allowed and suit was restored on to its file and it is thereafter i.e., the legal representatives of first defendant i.e., defendants 1(a) and 1(b) were brought on record. If there was a Will in favour of defendants 1(a) and 1(b) as per Exhibit D-1 as contended by them, they would have taken some steps as is expected of a prudent person i.e., either asking for mutation of khatha of the said property in their favour or any other step to assert their title to schedule III property. Undisputedly no such steps have been taken by these defendants. Even though they appeared before trial court on , they have not filed their written statement asserting their right to item No. III of suit schedule property. In other words they have adopted the written statement filed by first defendant. Thus, any amount of oral evidence without there being a plea is of no consequence.

40 40 Only by producing the Will dated and getting it marked as Exhibit D-1 they asserted their right over schedule III property. Said document was produced before the trial court and marked on i.e., after two years of their entering appearance i.e., on Be that as it may. Fifth defendant who was second plaintiff came to be transposed as fifth defendant at the instance of first plaintiff on as noticed herein above. He filed his written statement on and propounded the Will dated marked as Exhibit D- 4. As noticed herein above all along fifth defendant as 2 nd plaintiff was contending that schedule III property is the joint family property and for the first time after being transposed as fifth defendant he contended that it is the self acquired property of late Sri.Krishnachar. In this background trial court examined the evidence available on record, the Will propounded by fifth defendant and rejected the same.

41 The Hon ble Supreme Court in the case of H.Venkatachala Iyengar vs. B.N.Thimmajamma and others reported in AIR 1959 SC 443 has held that a propounder of the Will has to prove due and valid execution of the Will and that 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. It has been held in the said judgment as under: (23) It is in the light of these general considerations that we must decide whether the appellant is justified in contending that the finding of the High Court against him on the question of the valid execution of the will is justified or not. It may be conceded in favour of the appellant that his allegation that Lakshmamma has put her signatures on the will at five places is proved; that no doubt is a point in his favour. It may also be taken as proved that respondent 1 has failed to prove that Lakshmamma was unconscious at the time when the will is alleged to have been executed. It is true she was an old woman of 64 years and had been ailing for some time before the will was executed. She was not able to get up and leave the bed. In fact she could sit up in bed with some difficulty and was so weak that she had to pass stools in bed. However, the appellant is

42 42 entitled to argue that, on the evidence, the sound and disposing state of mind of Lakshmamma is proved. Mr. Iyengar, for the appellant, has strongly urged before us that, since these facts are established, the Court must presume the valid execution of the will and in support of his contention he has invited our attention to the relevant statements on the point in the text books dealing with the subject. Jarman on Wills (Jarman on Wills Vol. I, 8 th Ed., p. 50) says that the general rule is that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. He adds that, if a will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary, to be valid. Similarly, Williams on Executors and Administrators (Williams on Executors and Administrators Vol. I, 13 th Ed., p. 92) has observed that, generally speaking, where there is proof of signature, everything else is implied till the contrary is proved ; and evidence of the will having been read over to the testator or of instructions having been given is not necessary. On the other hand, Mr.Viswanatha Sastri, for respondent No.1, contends that the statements on which the appellant has relied refer to wills which are free from any suspicions and they cannot be invoked where the execution of the will is surrounded by suspicious circumstance. In this connection, it may be pertinent to point out that, in the same text books, we find another rule of specifically mentioned. A1-though the rule of Roman Law, it is observed in Williams, that Qui se scripsit

43 43 haeredem could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the Court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased (Williams on Executors and Administrators, Vol. I, 13 th Ed., p. 93) 21. Keeping the contours laid down in the above judgment when the facts on hand are examined particularly evidence of plaintiff P.W.1 whereunder in his crossexamination dated he has admitted to the following effect: The suits filed by my father is dismissed xxxxxxx My father s estate. Inspite of his differences with his father, Madwesh forcibly took my father to his house. He took him from the house of his sisters. It was around the year At that point of time my father was very weak, he had a paralytic stroke to the left side of the body, and he needed somebody s help to go to toilet and bathroom. The same condition continued till his death. He had that disability from somewhere around Earlier to that his

44 44 physical condition and mental condition were intact. After the stroke his mental condition and ability to express were fully affected. He was never cured till his death. 22. This evidence on record would clearly indicate that deceased Krishnachar as on 1991 i.e., on was not keeping good health and he had suffered a paralytic stroke and was unable to attend even his day-to-day chores. In this background the propounder of the Will has to show that the Will was duly signed by the testator and that he had affixed his signature to the testament on his own free will and he was in a sound and disposing state of mind. On discharging of this initial burden by the propounder, the onus shifts to the person who is calling upon the Court to hold that the will is surrounded with suspicion and he / she has to establish when onus so shifted. In the instant case undisputedly the original Will dated Ex.D-4 was not produced. It is the certified copy of said Will, which was produced. Contention put forth by 5 th defendant for non-production of original Will was that of said Will had been produced in P&SC

45 45 210/2002, and as it was produced in the present proceedings. Trial Court has rightly not accepted this contention, though reasons are not assigned, which this Court is assigning now namely, the option available to 5 th defendant was two fold: 1) he could have sought return of the original will produced before the Probate Court and could have marked in his evidence in the present proceedings; or 2) he could have filed an application under Order 13 Rule 10 CPC seeking for summoning of entire records of P&SC 210/2002 to be produced in the instant case, since this was exhaustive suit and also in view of the fact that in a probate proceedings declaration of title cannot be issued as held by the Hon ble Supreme Court in the case of KANWARJIT SINGH DHILLON V/s HARDYAL SINGH DHILLON AND OTHERS reported in AIR 2008 SC Further certified copy of the Will produced by 5 th defendant, marked as Exhibit D-4 was also not required to be accepted by Trial Court, though not accepted for a different reason, I am of the considered view that 5 th defendant ought

46 46 to have sought leave of Trial Court to tender the certified copy by way of secondary evidence, as required under Section 65 of the Indian Evidence Act, It is not the case of 5 th defendant that original Will-Exhibit D-4 was either lost or was not available or it was in the custody of an adversary. Hence, even assuming that 5 th defendant could have sought production of the said Will Ex.D-4 by way of secondary evidence, it could not have been marked for the simple reason that none of the ingredients of sub-clause (a) to (g) on Section 65 were attracted to the facts on hand. As such, Trial Court rightly did not accept the Will-Exhibit D-4 propounded by 5 th defendant. 24. Yet another reason which was rightly taken note of by Trial Court to discard the evidence of 5 th defendant is on account of attestor of the Will having not been examined as required under Section 68 of the Indian Evidence Act, Two witnesses who are said to have affixed their signatures to the Will, Exhibit D-4 propounded by 5 th defendant are

47 47 Sriyuths Lokkanna and Muralidhar. According to 5 th defendant, Lokkanna was dead. If so, nothing prevented him from examining any one of the legal representatives of Lokkanna to prove the signature of deceased Lokkanna found in Exhibit D-1, if at all, if it was the signature of Lokkanna. On the other hand, 5 th defendant examined a witness by name Sri Ramanna as D.W.6. Said witness has not been able to withstand the cross-examination, inasmuch as he has admitted that Krishnachar did not put his signature in his presence, which means he has no personal knowledge about execution of the Will. Said witness was examined on behalf of 5 th defendant to identify the signature of Lokkanna, who was said to be an employee of the Court. In fact, he has admitted in his cross-examination that Lokkanna has left behind wife and children and he is a close friend of D.W.5. If the legal representatives of Lokkanna were available, the moot question that would arise is as to what prevented 5 th defendant to examine the said legal representatives of Lokkanna to identify the signature of Lokkanna? This

48 48 question has remained unanswered. As such Trial Court has rightly held that on account of non-examination of the attestor to the Will-Ex.D-4, it is not duly proved. 25. Other attesting witness to said Will Ex.D-4 is Sri Muralidhar and he was also not examined and no reasons have been assigned for his non-examination. 5 th defendant has also examined one more witness D.W.7, namely Somshekar to identify the signature of scribe Bettaiah. D.W.7 admits in his cross-examination dated that Bettaiah had left behind his wife, three sons and if so, it was for the 5 th defendant who was attempting to prove the due execution of Will Exhibit D-4, to have examined anyone of the legal heirs of the scribe namely Sri Bettaiah to identify his signature. For reasons best known to 5 th defendant himself, neither the wife nor anyone of the sons of said Sri Bettaiah were examined to identify the signature of Sri Bettaiah. As such, Trial Court has rightly disbelieved the evidence of D.W.7 and has held that 5 th defendant has utterly failed to

49 49 prove the execution of Will dated , Exhibit D-4. In view of the aforesaid discussion, I am of the considered view that finding recorded by the Trial Court for not accepting the evidence of 5 th defendant who propounded the Will dated Ex. D-4 is just and proper and it is based on proper appreciation of evidence not calling for interference. 26. Now turning my attention to the Will propounded by defendant Nos. 1(a) and 1(b) i.e., dated Ex.D-1, it requires to be noticed that as observed hereinabove the executant of the Will namely, Sri. Krishnachar, who is said to have executed the Will dated , Exhibit D-1 in favour of his daughters, had appeared before Trial Court and filed his written statement on If really he had executed a Will in the year 1986, as contended by defendant Nos. 1(a) and 1(b), nothing prevented him from saying so in his written statement. This is the 1 st stage of suspicion arising in respect of execution of Ex. D-1.