N. Shanthakumari vs Jayamma

P.D. Waingankar, J.—Aggrieved by the dismissal of O.S. No. 9165/2001 by a judgment and decree dated 1.9.2010 passed by XVIII Addl. City Civil Judge, this appeal is preferred by the plaintiff.

The facts which gave rise to this appeal are as under:-

It is the case of the plaintiff that the plaintiff Smt. N. Shanthakumari, defendant No. 2 Smt. N. Pushpavathi and defendant No. 3-Smt. N. Manjuladevi are the daughters of one Late M. Narayana. Defendant No. 1 Smt. Jayamma is the wife of late M. Narayana. It is the case of the plaintiff that the suit schedule property is the self-acquired property of Late M. Narayana. Originally it was a site measuring 60'' x 40'' allotted to M. Narayana by BDA, wherein he put up a RCC roof structure. He died intestate on 24.9.2001 leaving behind the plaintiff and defendant Nos. 1 to 3 as legal heirs who succeeded to the schedule property in equal proportion. The plaintiff has got 1/4th share in the schedule property. After the death of M. Narayana, she demanded partition and separate possession of her 1/4th share in the schedule property. All the defendants have declined to grant her 1/4th share, which made the plaintiff to file a suit for partition and separate possession of her 1/4th share in the schedule property by metes and bounds.

The suit was resisted by the defendants-wife and other two daughters of M. Narayana. It is their case that though the property was originally allotted by BDA in the name of M. Narayana, the entire sale consideration was paid by defendant No. 2 the other daughter of Late M. Narayana, who was working in Canara Bank. They have also contended that Late M. Narayana, who was working as Engineer in HAL spent all his retirement benefits in order to perform the marriage of the plaintiff, who is residing with her husband, who is an Eye Specialist. It is further case of the defendants that Late M. Narayana left behind a will dated 7.9.1999 whereby he bequeathed the schedule property in favour of second defendant Smt. N. Pushpavathi and after the death of M. Narayana, Smt. N. Pusphavathi-defendant No. 2 succeeded to the schedule property on the strength of the will executed by M. Narayana. It is submitted that in view of the execution of the Will by late M. Narayana, neither the plaintiff nor other defendants i.e., defendant Nos. 1 and 3 have got any right, title or interest over the schedule property and hence the defendants have sought for dismissal of the suit.

Based on the pleadings of the parties and upon going through the documents, the Trial Court framed the following issues:-

Whether the plaintiff proves that she and the defendants constitute joint Hindu undivided family?

Whether the plaintiff proves that the parties herein are holding the suit schedule properties in the capacity of the joint owners?

Whether the plaintiff proves that she is entitled for 1/4th share each in the suit schedule properties and separate possession of the same by metes and bounds?

Whether the defendants prove that the suit schedule properties was purchased in the name of their M. Narayana from the earnings of defendants 2 and 3 and so the plaintiff has no right, title or interest over the suit schedule property and cannot seek any partition?

To what reliefs are the parties entitled to?

To what order or decree?

After framing of the issues, the plaintiff in order to prove her case, got herself examined as PW-1 and marked Exs.-P1 to P20. On behalf of the defendants, defendant No. 2 has been examined as DW-1 and two witnesses to the will Smt. Bharathi Uthappa and H.L. Manjunath Nayak have been examined as DW-2 and DW-3. Exs.-D1 to D64 are marked. The Trial Court upon hearing the arguments and upon appreciation of the entire evidence placed recorded a finding that the schedule property is the self-acquired property of Late M. Narayana. Since he executed a will in favour of second defendant, whereby he bequeathed the schedule property in favour of the second defendant, suit for partition filed by the plaintiff came to be dismissed by judgment and decree dated 1.9.2010. Aggrieved by the dismissal of the suit, the plaintiff preferred this appeal on the ground that the Trial Court has wrongly come to the conclusion that the will in question is the will duly executed by M. Narayana, though the will is surrounded by full of suspicious circumstance.

I have heard the arguments addressed by both the learned counsel appearing for the plaintiff-appellant and the defendants-respondents. Perused the records.

Learned counsel for the appellant would submit that Late M. Narayana died intestate and the will set up by the defendants marked as Ex-D64 is a got up and created document after the death of M. Narayana, which is surrounded by full of suspicious circumstances. He further submits that the will was not at all in existence as on the date of the filing of the suit on even thereafter when the defendants were ordered to produce the Will by the Court. The Will saw the light of the day after about 5 years from the date of death of M. Narayana. Under such circumstances, the finding recorded by the Trial Court that the Will has been duly proved is not sustainable in law.

On the other hand, learned counsel appearing for the respondents-defendants would contend that the plaintiff was aware of the execution of the Will Ex-D64 even at the time of filing of this suit and there has been a reference regarding the Will in the plaint itself. He further submits that merely because the Will has been produced after five years from the date of filing of the suit cannot be a ground to hold that the Will is not a genuine Will executed by deceased M. Narayana. Learned counsel would further submit that the Trial Court based on the evidence of both the attesting witnesses to the will and on other evidence placed on record has rightly come to the conclusion that the Will in question is a Will duly executed by Late M. Narayana, whereby he bequeathed the schedule property in favour of his daughter defendant No. 2, since it is the defendant No. 2, who contributed the entire sale consideration for the purchase of the schedule property and that it why, the Will has not been called in question by the wife of late M. Narayana or another daughter of Late M. Narayana. The plaintiff though aware of the due execution of the Will by M. Narayana in favour of defendant No. 2, in order to get the share in the schedule property, she has filed a suit which has been rightly dismissed by the court below. There is no merit in this appeal. Hence, learned counsel sought for dismissal of the appeal.

Having heard the submissions of both the learned counsel for the appellant and the respondents and upon consideration of the entire material on record, the following points arise for my determination:-

a. Whether the finding arrived at by the Trial Court that the schedule property is self-acquired property of Late Narayana is proper?

b. Whether the Trial Court is justified in coming to the conclusion that the Will in question is the will duly executed by Late M. Narayana?

Point No. 1:-

Learned counsel appearing for the plaintiff has vehemently argued before me that the schedule property-was acquired by Late M. Narayana-the father of plaintiff and defendant No. 2 and 3 and in view of the death of her father, the plaintiff and defendant Nos. 1 to 3 have become joint owners of the schedule property, since her father died intestate, the plaintiff is entitled for partition and separate possession of 1/4th share in the schedule property.

Whereas the Counsel for the respondents/defendants would contend that though the schedule property was allotted by the BDA in the name of Late M. Narayana, the sale consideration was paid by defendant Nos. 2 and 3, the other two daughters of Late M. Narayana, who are working in Canara Bank and Vijaya Bank respectively. It is their further case that Late M. Narayana died leaving behind a will whereby he bequeathed the schedule property in favour of his only daughter defendant No. 2 and therefore, defendant No. 2 alone succeeded to the schedule property under the Will. Thus one thing is clear that the property was allotted to Late M. Narayana by BDA in the year 1987. It was a site measuring 60 x 40 wherein Narayana put up structure. But the BDA executed sale deed dated 5.7.2011 in the name of defendant No. 2 during the life time of M. Narayana, subject the rights of other legal heirs of Narayana. Whether the amount for the purchase of the property was paid by defendant Nos. 2 is immaterial. It is suffice to say that it is the self-acquired property of Late M. Narayana and therefore the Trial Court is right in coming to the conclusion that the schedule property is the self-acquired property of Late M. Narayana.

Point No. 2:-

If it is the self-acquired property of Late M. Narayana and if M. Narayana died intestate as alleged by the plaintiff both in her plaint and in her evidence as PW-1, then the plaintiff being one of the daughters is entitled for partition and separate possession of 1/4th share in the suit schedule property as prayed for. But it is the specific case of the defendants that Late M. Narayana during his lifetime executed a Will dated 7.9.1999, whereby he bequeathed the schedule property in favour of defendant No. 2 and thereby defendant No. 2 became the exclusive owner of the schedule property on the strength of the Will executed by Late M. Narayana, neither the plaintiff nor defendant Nos. 1 and 3 are entitled for any share in the suit schedule property, much less, 1/4th share. Therefore, it has to be seen whether the Will in question marked as Ex-D64 is really the genuine Will executed by Late M. Narayana, who died on 24.9.2001. It is an accepted proposition of law that Will is a document executed by a person who is no more in this world and therefore it has to be strictly proved. The burden is always upon the propounder of the Will to prove the due execution of the Will. Since defendant No. 2 is the propounder of the Will, it is for defendant No. 2 to prove the due execution of the Will. Therefore, it has to be seen whether defendant No. 2 being the propounder of the Will has discharged the burden and established that the Will Ex. D-64 which she propounded is the last Will and testament of her father.

Defendant Nos. 1, 2 and 3 have filed a common written statement, which has been signed and verified by all the three defendants and there is no substance in the submission made by learned counsel for the plaintiff/appellant that defendant No. 2 has not filed written statement or for that matter, she has not signed and verified the written statement filed by defendant Nos. 1 and 3. The pleadings regarding the Will are found in para 3e and para 6 of the written statement which read as under:-

"3(e) The plaintiff has never taken care of Late M. Narayana and the 1st defendant. The defendant No. 2 was taking care of Late M. Narayana and she has paid the bank loan hence Late M. Narayana has bequeathed the schedule property in favour of 2nd defendant...................".

"6. Regarding para-4: Though the plaintiff and the defendant Nos. 1 & 3 are the class-I heirs of Late M. Narayan, they are not entitled for the share since the schedule property is already bequeathed in the name of 2nd defendant in the life time of Late Narayana. It is true that Late M. Narayana did not execute any Registered Will bequeathing the schedule property, but he has bequeathed the schedule property in the name of 2nd defendant."

The written statement was filed on 28.8.2002. There is no detail pleading as to the Will set up by defendant No. 2. Even the date of the Will is not mentioned in the written statement. Even at the time of filing of the written statement, the Will which is marked as Ex-D64 was not produced by the defendants for the reasons best known to them. It is seen from the order-sheet that the plaintiff filed an application under Order XI Rule 1 of CPC on 28.6.2004 at I.A. No. 3 requesting the Court to direct defendant Nos. 1 to 3 to admit that Late M. Narayana died intestate and to produce any documents for having bequeathed the schedule property in favour of defendant No. 2. The Court allowed the application and directed to produce the alleged Will said to have been executed by Late M. Narayana by 21.10.2005. Even when the case was called on 21.10.2005, the defendants did not produce the so-called Will. Instead they filed a memo seeking a week''s time to produce the documents. The time was granted till 21.10.2005. Even on 21.11.2005, Will was not produced, so also, on 25.2.2006, 11.7.2006, the Will was not produced. Finally on 6.6.2007, un-registered Will came to be produced after two years, though the defendants were ordered to produce the Will by 21.10.2005. This itself creates doubt or suspicion in the mind of the Court not only as to genuineness of the Will, but as to the very existence of the Will at the time of filing the written statement. The Will is said to have been executed on 7.9.1999. Late M Narayana died on 24.9.2001 and the Will came to limelight on 6.6.2007 i.e., after about seven years, that too, after the Court passed orders for production of the same. Merely because the plaintiff in para 4 of the plaint has mentioned that Late M. Narayana did not execute any registered Will bequeathing the schedule property, one cannot infer that the plaintiff was aware of the execution of the Will in question by Late M. Narayana. If the Will was really executed by Late M. Narayana during his lifetime and the defendant No. 2 was very much aware of the same, nothing prevented the defendant No. 2 from mentioning the date of execution of the Will in the written statement filed by her. The written statement is totally silent about the date of execution of the Will. That is another suspicious circumstance surrounding the execution of the Will.

It is not as if that immediately after execution of the Will Late M. Narayana died. He died on 24.9.2001 i.e., almost two years after the execution of the alleged Will. In that case, there was no reason for him to execute the Will while he was in Wockhardt hospital. Moreover, Ex-P9 the certificate issued by Wockhardt hospital dated 25.1.2007 discloses that they did not find any records pertaining to Late M. Narayana having admitted in Wockhardt Hospital. This is also another suspicious circumstance surrounding the Will. The witnesses to the Will are one Bharathi Uthappa and H.L. Manjunath Naik, who have been examined as DW-3 and DW-2. The evidence of DW-2 H.L. Manjunath one of the attesting witnesses is that the Will was written by Smt. Bharathi Uthappa-DW-3, which was read over by Smt. Bharathi and then he put his signature to the Will, after the Will was being signed by M. Narayana and Bharathi Uthappa, DW-2 put his signature as witness. He has identified the Will marked as Ex-D64 as the Will executed by M. Narayana in favour of defendant No. 2 N. Pushpavathi. He has also identified the signature on the Will of the testator M. Narayana at Ex-D64(a) and that his signature at Ex-D64(b) and the signature of Bharathi at D64(c). DW-2 is also an employee of Canara Bank, wherein defendant No. 2 is working. He has admitted that he used to meet defendant No. 2 and 3 whenever he was invited to marriage function and other functions and hence he became acquainted with them. He has further admitted that he alongwith second defendant were members of Canara Bank SC/ST Employees Association, they used to meet each other. DW-2 has further admitted that when DW-3 Bharathi was writing the last line of the document Ex-D64, he entered the room wherein M. Narayana was admitted. No Doctor or nurse or other attender of the hospital visited the room while he was in the hospital.

Coming to the evidence of DW-3 Bharathi, she has stated that defendant Nos. 2 and 3 requested her to record in writing the Will and testament as desired by their father M. Narayana and accordingly on 7.9.1999, she wrote the contents of the documents in the form of a Will as per the instructions of M. Narayana. Her further evidence would go to show that she read out the contents of the document which was prepared as per instructions of M. Narayana, who inturn subscribed his signature to the document in her presence. She was also requested to sign the document as witness and accordingly she signed the document as attesting witness and that H.L. Manjunath Naik, who is also known to her is another attesting witness to the Will. She has admitted in her cross-examination that defendant No. 2 legatee under the Will was working with her and hence they are known to each other. She became acquainted with defendant No. 2 in the year 1991 when both of them were working in Canara Bank, Shivajinagar Branch. They worked together for about two years in Shivajinagar Branch. DW-3 has further stated in her cross-examination that when she first saw the document Ex-D64, the matter was not written. M. Narayana handed over a blank paper to write the document as per Ex-D64 in the hospital when there was no other person in the Wockhardt Hospital on 7.9.1999. Further her evidence would go to show that she was informed by 2nd defendant that her father was admitted in the hospital and hence DW-3 had been to the hospital to see her father Narayana, who was having a draft of the document and asked her to write the contents as read over by him on the sheet given by him to DW-3. A suggestion made to her that DW-3 prepared Ex-D64 at the request of 2nd defendant has been denied. Thus from the cross-examination of DW-3, one thing is clear that draft of the Will was already prepared, who prepared it, is not forthcoming but the same contents were again re-written by DW-3. The fact that the draft was already prepared, but who prepared the draft is not forthcoming, again creates suspicion as to the circumstance under which the alleged Will came into existence. Moreover, both the witnesses to the Will were known to defendant No. 2 as they were working with her in Canara Bank. It is not the case of DW-3 that she was called to the hospital specially to write the Will. When she had been to see the father of defendant No. 2, he dictated the contents of the draft Will to DW-3. Needless to say that DW-2 and DW-3 are not the witnesses secured by M. Narayana, but they are the colleagues of defendant No. 2. All these suspicious circumstances surrounding the Will, which the defendants Nos. 1 to 3 failed to explain, drives me to reach a conclusion that the execution of the Will is shrouded with suspicion, is not a genuine Will. The Will has been fabricated and created by defendant No. 2 with the help of her colleagues working in the bank. That is why it took almost seven years for defendant No. 2 to produce the Will before the Court. Further it is pertinent to note that during the life time of M. Narayana, BDA executed sale deed in respect of scheduled property in favour of defendant No. 2 subject to the right of other legal heirs of M. Narayana. Further defendant No. 2 sold the schedule Property to one Satyanarayana during the pendency of the appeal to defeat the claim of the plaintiff. Thus the defendant No. 2 has done all that is possible for her to defeat the legitimate claim of the plaintiff including fabrication of the Will. The Trial Court without probing into all these suspicious circumstances narrated above surrounding the Will and without taking note of inordinate delay of seven years to produce the Will, that too, after the order to that effect by the Court has reached a conclusion that the Will has been duly proved which resulted in dismissal of the suit. The finding arrived at by the Trial Court is not sustainable in law, it is liable to be set-aside with an observation that the defendants have failed to prove the due execution of the Will by Late M. Narayana.

Once the Will is held be bogus and that Narayana died intestate, the plaintiff being the daughter is entitled for partition and separate possession of 1/4th share in the suit schedule property. Accordingly, I pass the following order:-

The appeal is allowed. The judgment and decree dated 1.9.2010 passed in O.S. No. 9165/2001 on the file of XVIII Addl. City Civil Judge, Bangalore is hereby set-aside. O.S. No. 9165/2001 on the file of XVIII Addl. City Civil Judge, Bangalore is decreed granting a decree of partition and separate possession of 1/4 share to the plaintiff in the schedule property by metes and bounds through appointment of the Court Commissioner.

Draw the preliminary decree accordingly.