B.R. Manjunath vs Lingappa Gowda

Mohan Shantanagoudar

This is the plaintiff''s second appeal against the concurrent findings of facts arrived at by both the Courts below. Suit is filed for declaration that plaintiff is the owner of the suit property and for permanent injunction. The property in question is a residential property. The case of the plaintiff is that his grand father Shivananjaiah executed a Will dated 8.8.1988 in favour of the plaintiff; Shivananjaiah expired in the year 1989; after the death of Shivananjaiah, the plaintiff became the owner of the suit property; however, the plaintiff''s father Ramaswamy and grand mother Deviramma i.e., son and wife of Shivananjaiah sold the suit property under the sale deed dated 30.12.1991; thus, the sale made by Ramaswamy and Deviramma i.e., the father and grand mother of plaintiff does not bind the plaintiff.

Case of the defendant is that he has purchased the property from the son and wife of Shivananjaiah, who were the owners of the suit property and therefore, he became the owner of the same by virtue of the sale deed dated 30.12.1991.

Both the Courts below on facts have concluded that the plaintiff has not proved the Will and consequently have dismissed the suit.

Plaintiff claims the property under the Will dated 8.8.1988. The certified copy of the Will is produced at Ex. P1. The attestors of the Will are not examined before the Court below. It is not pleaded or proved by the plaintiff before the Courts below that none of the attesting witnesses are alive and that therefore no one can be examined. In the absence of such evidence, the Courts below have rightly held that the plaintiff has failed to prove the Will by examining the attesting witnesses.

Even assuming that none of the attesting witnesses are alive at the time of filing of the suit, the plaintiff should have proceeded as per the provisions of Section 69 of the Indian Evidence Act. He should have examined a person who is well versed with the handwriting or signatures of the attesting witnesses in order to prove the Will. Such a step is not taken by the plaintiff. In the absence of examination of attesting witnesses, the Courts below are justified in holding that the Will is not proved. Since the Will is not proved, the plaintiff cannot become the owner of the suit property.

The plaintiff-appellant herein has filed application in I.A. No. 2/2012 praying for permission to produce the death certificates of attesting witnesses and the scribe of the Will dated 8.8.1988 at Ex. P1.

As aforementioned, the plaintiff ought to have taken the steps to examine the person/persons who are well versed with the hand writing or the signatures of the attesting witnesses during the course of trial. The trial went on without taking such steps. The suit is of the year 2007. Even before the first appellate Court also, the appellant did not choose to take such steps. No valid reasons are forthcoming as to why the permission to lead the additional evidence could be grante. By filing the application, the appellant has merely sought for permission to produce the death certificates of attesting witnesses and the scribe. He has not prayed for permission to examine the person/persons who is/are well versed with the hand writing or the signatures of the attestors and the scribe. Be that as it may, this Court does not find any ground to permit the appellant to produce the death certificates of attesting witnesses and the scribe inasmuch as no useful purpose will be served in producing such certificates at this stage. As aforementioned, without examining the person who is well versed with the hand writing/signature of the scribe or attestors, the requirement of law for proving the Will is not complete. Hence, I.A.No. 2/2012 is liable to be dismissed and accordingly the same stands dismissed.

No interference is called for. No question of law, much less substantial question of law, arises for consideration in this appeal. Accordingly, appeal fails and the same stands dismissed at the stage of admission itself.