Veeranna vs Channareddy and Others

K.N. Phaneendra, J.—This regular second appeal is preferred against the judgment and decree dated 15.02.2007 passed in R.A. No. 293/2002 by the aggrieved defendant No. 1-Veeranna.

I have heard the detailed arguments of Sri Ganapathi Bhat, learned counsel for appellant and also Sri Ashok S. Kinagi and Sri M.M. Allur, learned counsel appearing for respondents and I have carefully perused the records.

I would like to retain the ranks of the parties as per their ranks before the Trial Court, for the purpose of convenience and to avoid confusion.

The exposition of facts as per the pleadings of the parties before the Trial Court are as under:

The plaintiffs by name Mahadevamma and Channareddy have filed a suit for declaration that they are the owners in possession of the land bearing Sy. No. 111 measuring 21 acres 28 guntas situated at Kulkunda village in Chittapur Taluk and also for setting aside the order passed by the Assistant Commissioner in File No. Rev/Appeal 33/96-97 dated 01.04.1997 and also for consequential injunction restraining the defendants from interfering with the plaintiffs'' possession and enjoyment of the property. The plaintiffs have claimed the said property on the grounds that, one Basanagouda who is the husband of the first plaintiff and also husband of one Shivamma (first wife of Basanagouda) died issueless. The suit schedule property is the absolute property of one Shivamma who is the first wife of Basanagouda. The first plaintiff-Mahadevamma is none other than the sister of deceased Shivamma. She claimed that she is entitled for the suit schedule property as Shivamma as well as Basanagouda died issueless and due to the death of Shivamma, she became successor in interest of the said property. The second plaintiff claimed property as adopted son of the deceased Basanagouda, husband of the first plaintiff. It is the further contention of the plaintiffs that defendant No. 1 claiming that he acquired the property by way of Will executed by Shivamma during her lifetime and he got the revenue entries changed into his name. Then only they came to know about the revenue entry in the name of first defendant and thereafter, first defendant started interfering with the peaceful possession and enjoyment of the property by plaintiffs. Therefore, they are forced to file suit. The first plaintiff and Shivamma are full blooded sisters and they were enjoying the property during the life time of Shivamma. Shivamma died on 14.07.1994 intestate without any document executed in favour of anybody. Therefore, it is contended that plaintiff Nos. 1 and 2 have jointly continued to enjoy the property as absolute owners without interference by anybody. Defendant No. 2 is the daughter of plaintiff No. 2. She also given in marriage to Ameenaredy of Tarkaspeth. After the marriage she joined hands with the first defendant and started interfering with the peaceful possession and enjoyment of the property. Therefore, she was also made as party to the suit. It is the specific contention of the plaintiffs that Shivamma was in exclusive possession and enjoyment of the property acquiring the property as ''Streedhan'' and she became absolute owner in possession and enjoyment of the property during her lifetime. Therefore, after her death, plaintiffs have succeeded to the property as her legal heirs. The defendants in fact, put their appearance. The second defendant virtually supported the case of the plaintiffs by conceding to the plaint averments and she has categorically stated that she never interfered with the plaintiffs'' possession and enjoyment of the suit schedule property. The defendant No. 1 seriously contested the suit. Though some of the averments made in the plaint have been denied with regard to the plaintiffs succeeding to the property of Shivamma and also their possession and enjoyment over the suit schedule property, nevertheless, the written statement averments clearly establish that the relationship between the parties is not denied. It is categorically admitted that Shivamma is the first wife of Basanagouda. Shivamma and plaintiff No. 1-Mahadevamma are full blooded sisters. It is also not in dispute that first defendant is also none other than the son of Sugamma who is also a sister of Shivamma. It is categorically admitted in the written statement that Shivamma during her lifetime acquired the land by way of ''Streedhan'' and she owned the said property and possessed exclusively during her lifetime. The defendants on the other hand, claimed that the said Shivamma during her lifetime had been living with defendant No. 1. It is also the contention of the first defendant that plaintiff No. 2 is not at all adopted son of Basanagouda and there is absolutely no deed of adoption and no conduct of the parties show that there was any adoption between the second plaintiff and Basanagouda. It is the specific case of the first defendant that the deceased Shivamma executed a Will in favour of him on 19.05.1983 and bequeathed the suit schedule property in favour of first defendant. After the death of Shivamma, defendant No. 1 has been in possession and enjoyment of the said property. The revenue records also made out in the name of the first defendant by virtue of said Will. In fact, the plaintiffs never in possession and enjoyment of the property. On the other hand, defendant No. 1 claimed that he continued in possession of the property after the death of Shivamma and plaintiffs are making all their efforts to grab the property of first defendant by hook or crook. It is further contended that defendant No. 1 has succeeded to the estate of Shivamma and the plaintiffs have no right, title or interest over the suit schedule property therefore, he pleaded for dismissal of the suit.

On the basis of the above said rival pleadings, the Trial Court has framed the following issues:

i. Whether the plaintiff No. 2 proves that he is the adopted son of deceased Basanagouda as described in para No. 4 of the plaint?

ii. Whether the plaintiffs prove that they are the owners and possessors of the suit land?

iii. Whether the plaintiffs prove that the order passed by the Asst. Commissioner Sedam in file No. REV/Appeal 33/96-97 dated 01.04.1997 is null and void and ineffective as against the right and interest of the plaintiffs?

iv. Whether defendant No. 1 proves that on 19.05.1983 deceased Shivamma has executed a will deed in his favour as alleged in para No. 13 of the written statement?

v. Whether the plaintiffs prove that they are entitled for permanent injunction restraining the defendants from interfering in the possession of the suit land?

vi. What order or decree?

In order to establish their case, plaintiff No. 2 examined himself as P.W. 1 and got examined four witnesses as P.Ws. 2 to 5 and got marked Exs. P1 to P18 and defendant No. 1 examined himself as D.W. 1 and examined three witnesses as D.Ws. 2 to 4 and got marked Exs. D1 to D4. The Trial Court, on the basis of the oral and the documentary evidence on record, answered issue Nos. 1 and 4 in the negative, issue Nos. 2 and 5 partly in the affirmative and issue No. 3 in the affirmative and ultimately decreed the suit of plaintiff No. 1 and dismissed the suit insofar as it relates to plaintiff No. 2 is concerned and also held that defendant No. 1 has not proved the Will and has not acquired any right, title and interest over the suit schedule property. Accordingly, disposed of the suit.

Being aggrieved by the above said judgment and decree passed by the Trial Court, defendant No. 1-Veeranna approached the First Appellate Court in R.A. No. 293/2002 contending that the Trial Court has not properly appreciated the oral and the documentary evidence on record. Further, the Trial Court has wrongly construed that defendant No. 1 has not proved the Will dated 19.05.1983 and also natural succession has not been properly appreciated by the Trial Court. On the basis of the grounds urged before the First Appellate Court it also framed three important points for consideration, which are as follows:

i. Whether appellant proves that the Trial Court has wrongly granted the relief of declaration in favour of plaintiff No. 1 and held in possession of the property and granted consequential relief of injunction?

ii. Whether the appellant proves that the Trial Court has wrongly held that defendant No. 1 not proved the alleged will executed by Shivamma in his favour?

iii. Whether the judgment and decree passed by the Trial Court is erroneous and call for interference?

Answering point Nos. 1 to 3 in the negative, ultimately, the First Appellate Court has put its affirmative seal to the judgment and decree passed by the Trial Court and consequently, dismissed the appeal. Against which, the present appeal is preferred.

As could be seen from the pleadings and the evidence of the parties, there is absolutely no dispute with regard to the relationship between the parties and the fact that Shivamma was absolute owner in possession and enjoyment of the property during her lifetime. Plaintiff No. 1 claimed the property as successor of Shivamma. Plaintiff No. 2 claimed the property as successor of Shivamma on the basis of the adoption by Basavanagouda and claims that as if he is the son of Shivamma. Defendant No. 1 claims the property on the basis of the testamentary instrument alleged to have been executed by Shivamma on 19.05.1983. So these facts clearly disclose that when defendant No. 1 claims that he succeeded to the property on the basis of the Will, he cannot dispute the absolute ownership of Shivamma. It goes without saying that only a person who has got right, title and interest over the property can execute the Will in favour of other persons. The judgment and decree passed by the Trial Court dismissing the suit of plaintiff No. 2 is not challenged before the First Appellate Court by plaintiff No. 2. Therefore, issue No. 1 answered by the Trial Court holding the said issue against plaintiff No. 2 has reached finality so far as plaintiff No. 2 is concerned. So far as plaintiff No. 1 is concerned, the suit is decreed holding that plaintiff No. 1 is the owner and that is also not in any manner disputed by plaintiff No. 1. Defendant No. 1 who claimed the property by way of Will from Shivamma has challenged the said finding of the Trial Court so far as issue No. 4 is concerned before the First Appellate Court. Therefore, looking to the above said circumstances, consideration for this Court is totally narrowed down as to whether defendant No. 1 has established his case by proving beyond reasonable doubt the execution of the Will dated 19.05.1983 alleged to have been executed by Shivamma in his favour and whether he acquired any right, title and interest over the property. So far as the revenue entries are concerned, though the revenue entries have been made in favour of the first defendant it all depends upon the judgment of the civil Court. It is well recognized principle of civil jurisprudence by catena of decisions of the Supreme Court, the revenue records standing in the name of any person for any number of years itself will not confer any title in favour of that person, it may for limited purpose in a simple suit for injunction, can be construed prima facie title and possession for the purpose of ascertaining the nature of possession over the property. But when both the plaintiffs and first defendant in this case are fighting for their title on the basis of the execution of the Will and on the basis of natural succession, then, revenue entries which are made prior to or subsequent to filing of the suit are subject to the decision of the civil Court. Therefore, there is no need for this Court to once again deal with the facts with regard to the revenue entries made in favour of the first defendant.

The second appellate Court is only obliged to frame any substantial issue only after going through the evidence of the parties and the judgments of the Trial Court and the First Appellate Court. If it finds that any legal error is committed by the Trial Court or First Appellate Court, then only, substantial question of law arises for framing before this Court. Otherwise, if the Court is satisfied that the Trial Court and the First Appellate Court have appreciated the oral and the documentary evidence and they have only arrived at conclusion on the basis of the facts provided by the parties, then question of framing substantial question of law does not arise. In this background, let me see the judgment of the Trial Court and the First Appellate Court.

On the basis of the evidence placed by the parties before the Trial Court, it is the case of the first defendant that Shivamma was throughout living with him during her lifetime and due to love and affection, she executed Will dated 19.05.1983 and thereafter, he succeeded to the estate of Shivamma. The said Will has been denied by the plaintiffs seriously contesting the suit with regard to the said Will. In order to prove the Will, defendant No. 1 has examined himself and examined two attesting witnesses. Of-course, as could be seen from their evidence, they have specifically stated that thumb impression was put by Shivamma on the Will and in fact, defendant No. 1 was very much present at the time of execution of the Will and they also speak about Shivamma executing the Will. Though the Will technically shown to have been proved, proving thumb impression of Shivamma on the Will but the Trial Court as well as the First Appellate Court have come to the conclusion that there are lot number of suspicious circumstances with regard to the execution of the Will. The Trial Court and the First Appellate Court have culled out three important suspicious circumstances with regard to the execution of the Will i.e., to say (1) difference of ink with regard to the signatures of the two attesting witnesses; (2) thumb impression being not identified either by the scribe or anybody and there is some overlapping with regard to the thumb impression; (3) participation of D.W. 1 throughout with Shivamma at the time of execution of the Will and also no signature of Shivamma on the stamp paper to show that she actually purchased the said stamp paper.

Discussing the evidence of D.Ws. 1 to 3 the Courts have very much commented on the above detailed suspicious circumstances and held that Will has not been proved beyond reasonable doubt. Of-course so far as the execution of the Will and signature of the witnesses to the will, there is no much cross-examination and the witnesses have identified thumb impression of Shivamma and they also stated that in their presence Shivamma has put her thumb impression. The Trial Court has categorically observed that D.W. 1 in his evidence has admitted that Shivamma while staying with him in his house asked him that she want to execute a Will in his favour and she want a scribe to write the Will. Then defendant No. 1 has taken Shivamma along with witnesses to the house of scribe and it is the case that Shivamma and D.W. 1 both went and brought the stamp paper and on that stamp paper the Will was drafted and thereafter, executed by Shivamma. Though Shivamma''s name is not there on the stamp paper but nevertheless, thumb impression put by Shivamma on the stamp paper itself discloses that either of the two i.e., Shivamma or first defendant might have brought the stamp paper. Mere absence of signature on the stamp paper in my opinion will not invalidate the fact that either of the one must have brought stamp paper to the scribe. The other circumstances with regard to the change in ink so far as the witnesses D.Ws. 2 and 3 are concerned, in my opinion, that may not be a discrepancy to eradicate the Will on that ground alone because the witnesses have given explanation that they were having separate pens of their own and have put signatures from their individual pens. But the question remains that the last and important suspicious circumstance is the participation of D.W. 1 throughout. Because he is the beneficiary and he could not have taken participation in execution of the Will. It is abundantly clear from the evidence of D.Ws. 2 and 3 that D.W. 1 actually with all interest has taken Shivamma to the Scribe and he was throughout present and it was admitted during the cross-examination specifically that he shown the place where Shivamma has to put her thumb impression. This particular fact persuaded both the Trial Court and the First Appellate Court that he might have persuaded Shivamma for execution of the Will in utter disregard to the natural succession. Therefore, this particular strong suspicion has not been removed from the mind of the Trial Court and the First Appellate Court, by means of cogent and convincing evidence as to why he accompanied Shivamma and under what circumstances. Though the learned counsel before this Court tried to persuade me stating that Shivamma had no issues, plaintiff Nos. 1 and 2 were not with Shivamma, the only person available to her was defendant No. 1 therefore, she might have taken him for execution of the Will. But that cannot be the only inference that can be drawn by the Court because defendant No. 1 knew that Shivamma is the absolute owner of the property and if she dies intestate, the property may go to the hands of the plaintiffs, in that context, the inference that he has participated in getting the Will executed from Shivamma, is also possible. When two equal inferences can be drawn on the basis of the same set of fact, then it becomes suspicious circumstance, other than the one pleaded. Defendant No. 1 ought to have proved before the Court beyond reasonable doubt that he never intended to get the Will executed in his favour and without his knowledge, Shivamma on her own volition with free will and interest has executed the Will in favour of defendant No. 1. Such clinching evidence is absent in this case.

One more important aspect that has to be borne in mind by the courts while dealing with such sensitive issues between the parties is, if a person dies intestate leaving some natural heirs and also properties, then, after her death, natural succession should take place. The persons who acquire the right by means of birth or by means of blood relationship are entitled for the property by way of natural succession. The love and affection between the intestate and the successor is built in the blood relationship. However, if a party who sets up the Will wants to take the property in utter deviation to the natural succession free of cost, then it is incumbent upon him to establish his right over the property by way of Will beyond all reasonable doubt. Because the vested property in favour of the successors by way of natural succession will be divested by a testamentary instrument. Therefore, it is abundantly clear from various decisions of the Supreme Court that the Will should be proved beyond reasonable doubt. In this background, it is worth to note here a decision of the Apex Court reported in Ramchandra Rambux Vs. Champabai and Others, wherein the Apex Court at paragraph-9 has categorically stated that

"9. ........ There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of testator may not remove the doubt created by the appearance of the signature; ....... the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such "suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator."

The Apex Court also pointed out that "Apart from suspicious circumstances of this kind where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him that itself is generally treated as suspicious circumstance attending the execution of the will, and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words, the propounder must satisfy the conscience of the Court that the document upon which he relies is the last will and testament of the testator."

(emphasis supplied)

Therefore, looking to the above said decision, participation of the beneficiary itself is considered as strong suspicion in order to nullify the effect of the Will and always the Court should lean in favour of natural succession by holding that Will is not proved.

In this particular case also even on re-appreciating the materials on record that particular suspicious circumstance has not been satisfactorily established. Though an attempt was made before this Court and the said submission as already noted is satisfactory to come to a definite conclusion that when two inferences are available, naturally inference which favours the natural succession has to be adopted.

Therefore, looking from any angle, I do not find any strong reasons to frame any substantial question of law in this case. This Court is of the opinion that defendant No. 1 is not entitled for any property under the Will. But now present scenario is first plaintiff is also dead, therefore, whether any natural succession is open to the first defendant because he is none other than the son of another sister of deceased Shivamma. When plaintiff No. 2 claims that he is the successor of Shivamma on the ground that he is the son of brother of Basanagouda husband of Shivamma. According to the learned counsel, when it is said that property of Shivamma is ''Streedhan'' property, after the death of Shivamma it should revert back to the father of Shivamma. In that context, Shivamma left behind his sister Sugamma and defendant No. 1 is none other than son of Sugamma. Therefore, he is entitled for property as he is a natural successor of Mahadevamma (plaintiff No. 1). But the above said argument holds no water for the simple reason that nowhere in the written statement defendant No. 1 has taken up the plea that property has been acquired by Shivamma and it is only a limited estate acquired by her and after her death, it should go back to her father and it is already specifically culled out by him in the written statement that Shivamma is the absolute owner in possession and enjoyment of the property during her life time, she acquired the same by means of ''Streedhan'' property. When once it is said that it is ''Streedhan'' property, Shivamma is the absolute owner of the property, Section 14 of the Hindu Succession Act comes into operation. It confers absolute right, title and interest over Shivamma. Further added to that, when defendant No. 1 claims that he acquired the property by testamentary instrument executed by Shivamma, it further fortifies absolute right, title and interest over Shivamma. Even in that line, I do not think defendant No. 1 can succeed in this appeal. Under the above said circumstances, I do not find any absolute reasons to frame substantial question of law in this case. Consequently, the appeal at the stage of admission itself is liable to be dismissed. Accordingly, the appeal is dismissed.