Balasaheb vs Neeraj and Others

B.V. Nagarathna, J.—1. The plaintiff in O.S. No. 357/90 has preferred this second appeal, assailing judgment and decree of the first appellate Court [Fast Track Court-I, Chikodi], passed in R.A. No. 29/2001 dated 21/08/2009, by which, judgment and decree of the trial Court dated 16/09/2000 passed by the Prl. Civil Judge (Jr.Dn.) and JMFC, Chikodi, in O.S. No. 357/1990 has been confirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The appellant - plaintiff sought partition and separate possession of his share in the suit schedule properties and consequential relief of permanent injunction against the defendants. According to him, the suit properties are agricultural lands bearing R.S. No. 62/1, measuring 2.7 Acres and R.S. No. 86/2B, measuring 2 Acres, situated at Mamadapur village, Chikodi Taluk, Belgaum District, house property bearing VPC. No. 383, situated at Mamadapur and another house property bearing VPC. No. 457.

According to the plaintiff, one Ishwarappa had two sons namely, Ratnappa and Shivappa. Ratnappa had no children and he had taken Niraj, the grandson of his brother, Shivappa through his son Narendra in adoption. Shivappa had two sons namely, Balasaheb and Narendra, i.e., plaintiff and defendant No. 2 respectively. As Ratnappa was aged and residing with the plaintiff till his death and as the plaintiff used to look after Ratnappa with care and gave medical treatment, Ratnappa, out of love and affection towards the plaintiff, executed a registered Will dated 04/06/1990, in favour of the plaintiff and his adopted son Niraj, who was then a minor, residing with natural parents at Nippani. As a result, plaintiff was looking after Ratnappa till his death. That, R.S. No. 62/1, measuring 2.7 Acres and VPC. No. 383 are ancestral properties. Whereas, R.S. No. 86/2B was the self acquired property of Ratnappa. Accordingly, Ratnappa had bequeathed the properties in R.S. No. 86/2B measuring 2 Acres to the plaintiff and R.S. No. 62/1 was given to the defendant. Plaintiff has succeeded to 23 Guntas in R.S. No. 62/1 and in VPC No. 383, plaintiff has half share. According to the plaintiff, the cause of action arose in August 1990 when the plaintiff sought partition and the defendants refused. Hence, he sought for a decree of partition and separate possession.

On the date of filing of the suit defendant No. 1 was a minor and consequently, he was represented by his natural father - defendant No. 2. After he attained majority, fresh suit summons was issued to defendant No. 1 by discharging guardianship. Defendant No. 1 appeared through counsel and filed a memo adopting the written statement filed on 02/07/1992 and stated that he had no independent written statement. During the pendency of the case, defendant No. 2 died and his name was deleted from the array of parties. Defendant No. 6 is the wife of defendant No. 2. Defendant Nos. 3 to 6 where impleaded by the plaintiff. Defendant No. 3 filed written statement, which is adopted by defendant Nos. 4 and 5. Defendant No. 6 adopted written statement of defendant No. 1.

Defendant No. 1 in his written statement has denied the claim of the plaintiff. It is contended that the suit schedule properties are the ancestral joint family properties but all other properties have not been brought in to the hotch-pot. That the plaintiff has not arrayed the sisters of the natural father of defendant No. 2 in the suit. It was denied that Ratnappa and Shivappa were separated and it was asserted that they constituted a joint Hindu family and there was no partition in the joint family prior to the death of Ratnappa. As he had no issues, he took defendant No. 1 in adoption under a valid adoption dated 23/10/1986 in order to continue his legacy and adoption ceremony was performed as per Hindu rites and customs. The said adoption was with the consent of father of defendant No. 1 and other family members. That Ratnappa died as a member of the joint family but he was not the sole heir to any suit item. While denying other averments in the plaint, it was contended that Ratnappa all along resided with the family of the defendants and plaintiff was also a member of the joint family. Ratnappa did not reside exclusively with the plaintiff. There was no occasion for the plaintiff alone to look after Ratnappa. There was no occasion for Ratnappa to execute a Will in favour of the plaintiff, particularly, when Ratnappa had taken defendant No. 1 in adoption. That the Will set up by the plaintiff is false, illegal, unauthorized and consequently, cannot be acted upon. The recital mentioned in the Will with regard to R.S. No. 62/1, which is bequeathed to the plaintiff is illegal. The Will has not been executed by Ratnappa and it is a manipulated document in order to deprive the legitimate share of defendant No. 1.

It was further contended that R.S. No. 62/1 was ancestral land and R.S. No. 86/2B was not the self acquired property of Ratnappa. It was contended that all the suit properties were joint family properties and even if any property was purchased in the name of Ratnappa, it was because he was the Kartha of the joint family. That the plaintiff cannot be given half share in R.S. No. 86/2B and at best, he can claim only 1/4th share in the suit properties as there is no partition between the family members. It was contended that the suit was hence not maintainable and defendant No. 2 sought for dismissal of the suit. Defendant No. 1 also sought for dismissal of the suit with costs.

Defendant No. 3 filed separate written statement contending that Shivappa and Ratnappa separated long time ago and Ratnappa took Niraj in adoption, but he had not acquired the status of an adopted son. That defendant Nos. 3 to 5 are sisters of plaintiff and defendant No. 2 and they are entitled to half share in the suit property. Hence, defendant Nos. 3 to 5 together sought for half share in the suit items.

On the basis of the aforesaid pleadings, the trial Court framed the following issues for its consideration:--

"1. Whether the plaintiff proves that he is entitled for partition and separate possession of the suit properties?

If so, what is his share?

Whether the plaintiff proves that deceased Ratnappa executed a will in his favour?

Whether the plaintiff is entitled for permanent injunction?

Whether the defendant proves that the suit is bad for non inclusion of all the properties?

Whether the defendant proves that suit is bad for non joinder of necessary party?

Whether the defendant proves that the suit in the present form is not maintainable?

To what relief parties are entitled?

What order or decree?"

In support of his case, plaintiff examined himself as P.W. 1 and P.W. 2 is stated to be the attestor of the Will executed by Ratnappa on 04/06/1990. Plaintiff produced 8 documents, which were marked as Exs. P.1 to P.8. Ex. P.8 is the original Will. Defendant examined 3 witnesses but no documents were marked on their behalf. On the basis of the aforesaid evidence trial Court answered Issue No. 1 as partly in the affirmative, Issue Nos. 2 and 8 in the affirmative. Issue Nos. 3 and 7 in the negative. Issue Nos. 4, 5 and 6 as "does not survive for consideration".

The trial Court partly decreed the suit and held that plaintiff was entitled to 1/4th share in the suit properties. That suit schedule "A" property was to be divided as per Section 54 of the Code of Civil Procedure [CPC] as amended by Karnataka Amendment. That Schedule "B" property was to be divided as per the provisions of the Indian Partition Act, by appointing a Court Commissioner.

Being aggrieved by the judgment and decree of the trial Court dated 16/09/2000, plaintiff filed R.A. No. 29/2001, contending that the trial Court was not right in not believing Ex. P.8 - Will executed by Ratnappa in his favour and thereby, not granting the properties bequeathed to him. The first appellate Court on hearing the learned counsel for parties raised the following points for its consideration:--

"Whether the impugned judgment and decree requires the interference of this court and that the appeal is fit to be allowed?"

It answered the point in the negative and consequently, dismissed the appeal filed by the plaintiff by affirming the judgment and decree of the trial Court. Being aggrieved by the judgment and decree of the first appellate Court dated 21/08/2009, the plaintiff has preferred this second appeal.

I have heard learned counsel for the appellant -plaintiff and learned counsel for respondent Nos. 1 and 8. Respondent Nos. 2 to 6 are served and unrepresented. Service of notice on respondent No. 7 is held sufficient.

It is contended on behalf of the appellant that both the Courts below were not right in holding that the appellant - plaintiff had not proved Ex. P.8 - Will dated 04/06/1990 executed by Ratnappa, in his favour. It is contended that though Ratnappa had taken defendant No. 1 in adoption, he was a minor and was studying and residing with his parents namely defendant Nos. 2 and 8 and at the relevant point of time, it was the plaintiff who took care of Ratnappa. This is not a case where the testator has completely ignored the adopted son. The testator, on the other hand, has intended to grant a portion of the property to his adopted son and the other portion to the plaintiff, recognizing the latters treatment and care given to the testator. Merely because bequest has been made to the plaintiff, it cannot be concluded that the bequest was suspicious. He further contended that four attestors had attested the Will and out of that, one attestor deposed as P.W. 2. The deposition of P.W. 2 is in consonance with P.W. 1 the plaintiff, who is the propounder of the Will. That there was no suspicious circumstance surrounding the execution of the Will. Despite that, the Courts below have held that the Will is invalid. Consequently, the plaintiff has been deprived of his right, title and interest as per the bequest made by Ratnappa and he has been granted only a share in his own family i.e., the branch of Shivappa. That injustice has been caused to the plaintiff on account of the Will not being given effect to by the Courts below. He also contended that the judgment of the first appellate Court is cryptic and there are no reasons given for the first appellate Court to have confirmed the judgment of the trial Court in not believing Ex. P.8 - Will of Ratnappa. He contended that substantial questions of law would arise in this appeal and that the appeal may be admitted for a detailed hearing.

Per contra, learned counsel for respondent Nos. 1 and 8 supporting the judgment and decree of the Courts below contended that the plaintiff has failed to prove the Will to the satisfaction of the conscience of the Courts below. The execution of the Will is shrouded in suspicious circumstances. When Ratnappa had adopted Niraj as the adopted son, there was no need to give a major portion of his properties in favour of the plaintiff and a lesser portion to his adopted son. The fact that one item of the property namely, Sy. No. Rs. 86/2B is stated to be the self acquired property of Ratnappa, is also false. That the suit properties are ancestral joint family properties. The plaintiff has examined only P.W. 2, who is one of the attestors of the Will. It is not known as to why other attestors were not examined. Even the scribe of the Will was not examined. He contended that when both the Courts have held that the plaintiff has failed to prove the Will and thereby, have eschewed taking into consideration the Will while granting partition and separate possession, the said judgment would not call for any interference in this second appeal. That no substantial question of law would arise in this appeal. He therefore, submitted that the appeal may be dismissed in limine.

Having heard learned counsel for the parties and having perused the material on record, it is noted that the relationship between the parties is not in dispute. One Ishwarappa had two sons, Ratnappa and Shivappa. There was no partition in the family of Ishwarappa consequent upon his death. Ratnappa and Shivappa continued to remain joint. Ratnappa had no children, he had adopted Niraj - the grandson of Shivappa through Narendra. The adoption made by Ratnappa is accepted by the plaintiff. The claim of the plaintiff is not based only on his right, title and interest in the suit property as a heir to Shivanna but also has a legatee under Ex. P.8 - Will said to have been executed by Ratnappa. It is in that regard that the plaintiff claimed half share in the suit schedule properties. Both the Courts below have come to the conclusion that Ex. P.8 has not been proved in accordance with the requisites of law and therefore, the bequest made to the plaintiff cannot be accepted.

One of the celebrated decision of the Hon''ble Supreme Court on proof of Will is reported in the case of H. Venkatachala Iyenger v. B.N. Thimmajamma [, AIR 1959 SC 443], wherein, it has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:--

"18. Xxx. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."

In the instant case, it is noted that Ex. P.8, which is stated to be the registered Will of Ratnappa is dated 04/06/1990 and thereafter, he died on 29/06/1990. The plaintiff has not let in any evidence as to the events leading up to the execution of the Will and the subsequent death of the testator within a few days thereafter. It is noted from Ex. P.8 that the Will has been got written through a scribe but the scribe has not been examined. Apart from the signature of the testator, there are four other signatories who are stated to be that of four different attestors. Only one attestor namely, P.W. 2 was examined and his evidence is very critical. In fact, he has admitted that he was not aware that he had to attest the Will. The purpose of meeting the testator on the particular day was not known. As the evidence has been scrutinized by the trial Court, it has been held that the execution of the Will is shrouded in suspicious circumstance. Various aspects with regard to the execution of the Will have been considered by the trial Court while answering Issue No. 3.

I have myself examined Ex. P.8 - Will from the original records. It is seen that the Will has been written by one D.N. Soundalgekar, who is a deed writer at Nippani. He has not been examined in the matter. Two other persons, who are stated to be the attestors have signed in Marathi language. One of them was examined as P.W. 2 and he has identified his signature. Two other persons namely, Maruti Shetty and M.S. Patil Mamadapur, have signed in English. Whether they were known to the testator or not is not forthcoming. It gives an impression that these two persons have signed in English and have only signed next to the signatures of the attestors. Their role in attesting the Will is not forthcoming as no evidence is let in on their behalf. The evidence of P.W. 2 as already noted does not in support of P.W. 1. In that view of the matter, both the Courts have concurrently held that the Will is not proved in accordance with law. The execution of the Will is shrouded in suspicious circumstances particularly, when the propounder of the Will has stated that defendant No. 1 was living away and that it was only he who was close to the testator during his last days. The conscience of the Courts below and also of this Court with regard to the validity of the Will has not been satisfied. Therefore, the Courts below were justified in not giving effect to the bequest made under Ex. P.8 to the plaint.

I do not find any infirmity in the judgment of the Courts below although the judgment of the first appellate Court cannot be held to be erroneous merely because it is cryptic. No substantial question of law arises in this appeal. The appeal is dismissed. There shall be no order as to costs.

In view of the dismissal of the appeal, Misc. Civil No. 104658/2011, seeking direction does not survive for consideration and is also dismissed.