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Judgment
Aravind Kumar, J.—This revision petition has been preferred by 2nd judgment debtor in Execution Case No. 73/2002 (old No. 49/2000) whereunder order passed by the executing court on 06.10.2010 holding that Will dated 02.08.1996 propounded by the decree holders has been held to have been proved and as such, it arrived at a conclusion that execution proceedings filed by them is maintainable and finding is also recorded by the executing court that 2nd JDR (2nd revision petitioner) has failed to prove that judgment and decree passed in O.S. No. 438/1990 is not binding upon him.
I have the arguments of Sri Dinesh M. Kulkarni, learned counsel appearing for the revision petitioner and Sri Suresh P. Hudedagaddi, learned counsel appearing for respondents 1(a) to 1(d).
Respondents 1(a) to 1(d) filed execution petition in Ex. No. 73/2002 with a prayer for executing the judgment and decree passed in O.S. No. 438/1990 dated 10.11.1995. Said execution petition was filed against Sri Hanumantappa Goudappa Aryar Urf Kalasa and his son Sri Shivaji Hanamanthappa Aryar Urf Kalasa i.e., 1st revision petitioner. In the execution proceedings, judgment debtors challenged execution of the Will by deceased decree holder in favour of DHRs 1 and 2 which dispute came to be adjudicated by the executing court. While undertaking this exercise, executing court formulated the following points for its consideration:
i) Whether applicants prove that, they are legatees under the Will dated 02.08.1996?
ii) Whether application can be made by the persons claiming under the decree holder?
iii) Whether Dr. No. 2 proves that, judgment and decree passed on 15.11.1995 in O.S. No. 348/90?
iv) What order?
Both parties tendered their evidence namely oral and documentary and on appreciating and evaluation of such evidence, executing court held that the Will dated 02.08.1996 propounded by DHRs 1 and 2 is proper and same was held to be duly proved. As such, it also came to be held execution petition filed by them is maintainable. Since JDR No. 2 had claimed that the decree passed in O.S. No. 438/1990 is not binding on him which was also an incidental question, same also came to be examined by the executing court and said issue was held against 2nd JDR. It is this order, which is assailed in the present revision petition.
It is the contention of Mr. Dinesh M. Kulkarni, learned counsel appearing for the petitioner that (1) executing court could not have gone into validity of the Will and it was required to be decided by a competent civil court in another proceedings; and (2) for the first time, 2nd JDR was made a party in the execution proceedings and when there was no decree passed against him and said decree could not be executed against him.
Per contra, Sri Suresh Hudedagaddi, would support the order passed by the executing court and he would contend that revision petitioner has no locus standi to challenge the Will of deceased decree holder and only person/s interested in the property and claiming right over the property of deceased can question the same and that too, by filing a suit and as such, contention of the 2nd JDR that the Will was required to be proved by decree holders 1 and 2 before a competent court does not hold water and as such, he has prayed for rejection of the revision petition and prays for affirming the order passed by the executing court.
Having heard the learned advocates appearing for parties and on perusal of the case papers, this Court is of the considered view that following points would arise for consideration:
i) Whether the executing court was justified in holding that the Will executed by deceased decree holder/Sri Veerabhadrappa Guddadeerappa Limbikai in favour of his two sons (present decree holders) dated 02.08.1996 and marked as Ex. P. 1 was duly proved?
OR
Whether the executing court had no jurisdiction to entertain or examine the validity of Will dated 02.08.1996 Ex. P. 1?
ii) What order?
BRIEF BACKGROUND OF THE CASE:
Sri Veerabhadrappa Guddadeerappa Limbikai filed a suit against the 1st JDR Sri Hanamantappa Goudappa Aryar seeking specific performance of agreement of sale dated 12.01.1984 in O.S. No. 438/1990. Said suit after contest came to be decreed on 10.11.1995. Being aggrieved by the said judgment and decree, JDRs 1 and 2 filed an appeal in R.A. No. 78/95 which came to be dismissed for default on 30.03.1999. Seeking recall of the order of dismissal, M.A. No. 32/2002 was filed which after contest came to be dismissed on 18.02.2005. Being aggrieved by this order, JDRs 1 and 2 filed an appeal before this Court in M.F.A. No. 2106/2008, which also came to be dismissed vide order dt. 03.11.2009. Though executing court had appointed a Court Commissioner to execute the sale deed in favour of decree holders 1 and 2 on 30.11.2007, same had been stayed on account of Misc. Petition No. 32/2002 being pending. On dismissal of M.F.A. No. 2106/2008, decree holders persuaded the executing court to give effect to the order passed on 30.11.2007, whereunder Court Commissioner had been appointed to execute the sale deed in favour of decree holders 1 and 2. On account of an observation having been made in Misc. Petition No. 32/2002 that decree holder would be entitled to prove the Will propounded by them, the executing court extended opportunity to both the parties. Decree holder No. 1 got himself examined as PW-1, scribe of the Will was examined as PW-2 and one of the attesting witness of the Will was examined as PW-3. In all six documents were produced by the decree holders and they were got marked as Ex. P. 1 to Ex. P. 6. 2nd JDR got himself examined as RW-1 and two witnesses were examined on his behalf as RW-2 and RW-3. After analysing and evaluating the evidence tendered by parties, executing court by order dated 06.10.2010 as already noticed hereinabove, upheld the contention of the decree holders/and rejected the contention of JDRs, which order is under challenge in this revision petition.
RE: POINT No. 1
Perusal of the case papers would indicate that judgment debtor No. 1 has been avoiding and evading to ensure that the decree holder does not enjoy the fruits of decree even though it has been passed 33 years back. At every step, JDR either by himself or through third party is creating bottleneck for due execution of the decree. This revision petition is one such offshoot of the bottleneck created by JDR No. 1 through JDR No. 2. This opinion is formed by this Court for the reasons that would unfold hereinbelow.
Decree holder as already noticed hereinabove namely Sri Veerabhadrappa Guddadeerappa Limbikai had obtained a decree of specific performance against JDR No. 1 in O.S. No. 438/1990. However, before he could enjoy the fruits of the decree, namely before he got the decree executed, he expired on 02.07.1997. Execution Petition came to be filed by his two (2) sons i.e., respondent No. 2 and father of respondents 1(a) to (d). It was stated by his sons who filed the execution petition that their father had executed a Will dated 02.08.1996 in their favour and as such, they being the legatees under the said Will, they are entitled to maintain the execution petition and enforce the decree against JDRs. In fact, this issue was not at all required to be gone into by the executing court at all, inasmuch as, undisputedly these two persons are none other than the sons of the original plaintiff and they being Class I heirs under the Hindu Succession Act, they would be entitled to maintain the execution proceedings even otherwise. However, when the decree holders themselves came forward with a plea that they have filed the execution petition by virtue of not only being Class I heirs of deceased decree holder namely as sons of original plaintiff but also claiming their right as a legatee under the Will dated 02.08.1996 executed by their father, they virtually invited the executing court to give a finding upon their right. As such, executing court embarked upon conducting an enquiry as to whether the said Will dated 02.08.1996 propounded by the sons of the decree holder is to be accepted or not.
Section 68 of the Evidence Act mandates that a document is required by law to be attested, shall not be used as evidence until one attesting witness has been called for the purposes of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Thus, the propounders of the Will in the instant case not only summoned one of the attesting witness to the Will namely PW-3 who entered the witness box and has stated that Will in question was duly executed in his presence by the deceased Sri Veerabhadrappa Guddadeerappa Limbikai namely the father of decree holders 1 and 2 and he identified signature of the testator as well as his signature also. In fact, scribe of the Will also came to examined by them as PW-2. While appreciating said evidence, executing court has rightly come to a conclusion that Will was duly executed by the deceased and its execution was held to be duly proved.
At this juncture, it would be appropriate to deal with the contention raised by Mr. Dinesh M. Kulkarni, learned counsel appearing for JDR No. 2 that is revision petitioner namely that validity of Will could not have been gone into by the executing court. In any proceeding where a Will has been propounded by the party and denied by the other, it requires to be adjudicated in the very same proceedings for the purpose of said proceedings, inasmuch as the maintainability of the proceedings itself would depend upon the finding that may be recorded in that regard. In the instant case, it is not the case of judgment debtor No. 2 that he is having any right or claim over the suit schedule property through the deceased testator. On the other hand, he claims that the suit schedule property which is the subject matter of the decree passed in O.S. No. 438/1990 is a joint family property and as such, his father could not have executed an agreement of sale in favour of father of decree holders. In the event of there being any intra claim between the decree holders and any third parties were also claiming right under the deceased plaintiff i.e., Sri Veerabhadrappa Guddadeerappa Limbikai, then the contention of Mr. Dinesh M. Kulkarni, learned counsel was susceptible to acceptance. Undisputedly, 2nd JDR i.e., revision petitioner is not claiming any right through the said Sri Veerabhadrappa Guddadeerappa Limbikai. As such, he cannot have any grievance with regard to the Will dated 02.08.1996 executed by deceased Sri Veerabhadrappa Guddadeerappa Limbikai in favour of his sons. Even otherwise, as pointed out earlier and at the cost of repetition, decree holders 1 and 2 being the sons of deceased plaintiff i.e., Sri Veerabhadrappa Guddadeerappa Limbikai, they would be entitled to maintain the execution proceedings, since they have stepped into the shoes of their father as Class I legal heirs. In other words, issue of Will, will recede to background. Even otherwise, decree holders having propounded the said Will before the executing court have duly proved execution of same and as such, there is no infirmity committed by the executing court in arriving at a conclusion that execution of the Will by deceased Sri Veerabhadrappa Guddadeerappa Limbikai was duly proved by decree holders. As such, first contention raised by Mr. Dinesh M. Kulkarni, learned counsel cannot be accepted and it stands rejected.
It also requires to be noticed that issue of probate of the Will which was also canvassed by Mr. Dinesh M. Kulkarni, cannot be accepted. Probate of Will is conclusive as to its due execution and the appointment of the executor. It intends to recognise the title of the testator to the properties to dispose of. In the instant case, decree holders are not only claiming their right to execute the decree obtained by their father by virtue of they being Class I legal heirs, but also by virtue of they being legatees under the Will dated 02.08.1996 which came to be marked as Ex. P. 1. As such, granting of probate or otherwise would be inconsequential and it would not change the right of the decree holders to get the decree executed, obtained by their father. The two judgments relied upon by Sri Dinesh M. Kulkarni, learned counsel are:
i) Suresh Kumar Bansal Vs. Krishna Bansal and Another, :
In the said case, the deceased-landlord initiated eviction proceedings against the tenant. During the pendency of proceedings, he expired. His wife filed an application as legal heir to come on record. Simultaneously, another application also came to be filed by the brother of deceased claiming a right over the petition schedule property as a legatee under the Will. In other words, the brother of the deceased propounded a Will dated 11.06.1989 claiming that his deceased brother had bequeathed property in his favour. In this background, it was noticed by the Hon''ble Apex Court that there was two rival claimants in respect of the property and both are permitted to be brought on record as the legal heir or in other words it was held by the Apex Court that both the applicants can prosecute the cause of deceased landlord and in the event of decree of eviction being passed, it would be subject to an authoritative pronouncement by a civil court granting a probate to declare the right of the party which would govern the issue and as such, it was held by the Apex Court that the decree of eviction that would be passed would be executable by the person who obtains the probate of the Will.
In the instant case, there is no rival claimant with regard to the decree sought to be executed by the decree holder. In other words, the judgment debtor No. 2 who is the revision petitioner herein is not claiming any right to the property in question through the deceased plaintiff. His claim to the suit property is said to be independent or distinct. As such, he does not get a right to challenge the Will executed by the father of decree holders. 2nd JDR is a third party insofar as the decree holders are concerned. In that view of the matter, said judgment would not be applicable to the facts of the present case.
ii) Bhimappa Ramachandrappa Amate Vs. Shrikant Maruthi Mirajakar and Others, :
It was a suit filed for declaration claiming ownership and right over immovable property and plaintiff having expired during the pendency of the proceedings, application was filed to bring ''S'' on record as legal representative of deceased plaintiff. The said person was impleaded as LR of deceased plaintiff on the basis of an alleged Will. In that background of the examination of an applicant''s right to come on record in a proceeding under Order XXII Rule 3 of the CPC, it came to be held by this Court that it is a summary proceedings and as such, a finding cannot be given with regard to the validity of the Will. In the instant case, parties have consciously went for trial to prove and to disprove execution of the Will and as such, executing court having considered the rival contentions, same has held that Will is duly proved. As such, second judgment relied also cannot come to rescue of the petitioners.
In that view of the matter, no infirmity can be found in the finding recorded by the trial Court.
RE: POINT No. 2:
It has beer, contended by Sri. Dinesh M. Kulkarni, learned counsel appearing for petitioner that JDR-2 not being a party to O.S. 438/90 and there being no decree passed against him he is not required to execute the sale deed and as such order passed by the Executing Court that JDR-2 being party to the proceedings, on the ground that appeal had been preferred by him along with JDR No. 1 against the Judgment and decree passed in O.S. 438/90 is an erroneous finding particularly when there is no decree passed against 2nd JDR allowing the execution petition being proceeded against JDR-2 is concerned is liable to be set aside.
Learned counsel appearing for JDR-2 namely revision petitioner has made available statement of objections filed to the execution petition during the course of his arguments before this Court. Perusal of'' the same would indicate that 2nd JDR has asserted his title to the property in question. His plea in that regard reads as under:
"3. That the suit land is in my possession which is fallen to my share in the family partition. The JDR No. 2 is exclusive owner and lawfull possession of the suit land since 1997 to this day. The JDR No. 2 is in possession and enjoyment of JD No. 2". 17. Above pleadings would clearly indicate that during the pendency of the suit, the property is said to have been transferred by JDR No. 1 in favour of JDR No. 2. As such, such transfer is hit by the Doctrine of Transferee Pendente Lite and JDR-2 would not be entitled to claim any better title than what the JDR No. 1 possessed.
There cannot be any dispute with regard to the proposition that Executing Court cannot travel and traverse beyond the decree that has been passed. Decree passed in O.S. 438/90 is against JDR-1 only. In the event of JDR failing to execute the sale deed as per the decree it is always open to the decree holder to get the sale deed registered through the process of court. Infact the executing court vide order dated 30.11.2007 had already appointed a Court Commissioner to execute the sale deed of the suit schedule property or the property involved in the execution proceedings in favour of decree holders 1 and 2. In that view of the matter proceedings against JDR-2 that to directing him to execute the sale deed would not only be contrary to decree passed but also beyond the scope of said decree. Hence, order passed by the executing court permitting decree holders to get the sale deed executed in their favour through 2nd JDR also cannot be sustained.
JDR No. 2 is attempting to claim right over the property in question by virtue of a wardi said to have been given by his father i.e., JDR No. 1 to enter his name in the revenue records. It is needless to state that mutation entry does not confer title in favour of JDR No. 2. In that view of the matter it is to be held that the execution proceedings initiated by decree holders against JDR No. 2 that too seeking for execution of sale deed in their favour by both JDRS cannot be sustained or in other words execution court cannot travel beyond the decree that has been passed. As such Execution petition filed against JDR No. 2 would not be maintainable. Accordingly Point No. 2 is answered by holding that the executing court was justified in arriving at a conclusion that Will executed by Sri. Veerabhadrappa in favour of decree holders on 02.08.1996 as per Exhibit P-1 is just and correct and executing court was fully within its domain to examine the validity of the Will insofar as the claim of decree holders initiating the execution proceedings against JDR-1.
In view of the finding recorded herein above that JDR No. 2 would not be a proper party to the execution proceedings, since there is no decree passed against him and the executing court cannot go beyond the decree that has been passed, it would be needless to state that executing court shall proceed to direct the court commissioner to execute the sale deed in respect of the property in question in favour of decree holders, dehors the alleged transfer from JDR-1 to JDR-2 who is a Transferee pendente lite and JDR No. 2 would also not get any right either to file an application under Order 21 Rule 97 or 98 for obstructing the decree being executed.
For reasons aforestated, I proceed to pass the following:
ORDER
Revision Petition is hereby allowed in part.
Order passed by the Executing Court dated 06.10.2010 in Execution No. 73/2002 (old No. 49/2000) by Civil Judge, JMFC, Mundargi to the extent of holding that the Will propounded by decree holders as per Exhibit P-1 is duly proved is hereby affirmed. However, execution proceedings against JDR No. 2 stands dismissed.
No order as to costs.