This redemption appeal challenged a trial court decree finding a registered Will bogus. The High Court reversed the trial court, holding the Will valid based on the testator's attachments to the dependent respondent rather than prejudice against other settled siblings.
Will is held proved; trial court judgment set aside; suit dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS 1’ THE DAY OF JUNE,. 2012
THE HON’BLE MRJUST1CE SUBHASH B. ADI
PAR1R[A4i,’210
BETWEEN:
Begaum590 001. Shri Mangesh Mohan Kadle, Age, 55 years. 0cc: Business. R/o Viflage Benkanhafli, APPELLANT
Smt KS. Hemaekha, Advs) (By Sri G. B. Shastry, RM. Kulkarni and
A ‘ Li
Hahyal, Dist: Karwar-581 023. Shri SaUsh Mohan Kadie, Age: 66 years, 0cc: Retired, Bus Stand Road, RIo Near Bus Stand, 1.
‘r r-r/o 1/11, Jeevan Saritha Building, Tejpal Scheme, Road Nol Age 64 years, 0cc: Housewife, Vile Pane (F), MumbaH400 057.
Dharwad-580 001,
The Manager, CoHege Road, RESPONDENTS 5. Belgaum590 001. Punjab National Bank,
(By Sri Sachin P. Bichu, Adv. for P.1 Sri CV. Angadi, Adv. for R3 Sri Sangram S. Kulkarni, Adv, for R4, Sri V. A. Byatnal, RA,Purohit, Adv. for R5)
This RFA is filed under Sec96 of CPC, praying to set in & AddMACT, Belgaum, in O.S,No,8/2005, and etc. 130L2010 OSNoS/2005 on the file of the III Addi. Civil Judge (Sr.Dn.) aside the judgment and decree dated
The appeal coming on for hearing this day, the Court, deliverd the following:
JUDGMENT
This appeal is by the defendant4 in 0,5,8/2005 dated 13,1,2010 on the file of the III Addl. Civil Judge, Sr, Dn,
in plaintiff and respondents 2, 3, 4 and 5 were the defendants2. to 5 Resooncient1 this apoeal was the
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the Trial Court. Parties will be referred to as per their ranking before
Plaintiff Mohan Mohan Annaji Kadle on Kadle. 2. is one for partition and Is will and is null and void. d 21.ii.2004 at defendant-i from transfer or alienation or creating charge on at Benkanahalli village, late Mohan Kadle had purchased the the suit schedule property and for a decree for declaration the separate Defendant-i is another brother and defendants 2 and 3 are share In the suit schedule A to C the plaintiff and defendants 2 and 3 are real brothers and eldest permanent sisters. mother predeceased to him on 20.7.i997. sisters. possession of 113 properties been executed by late Mohan Kadle is not valid and genuine private service. Thereafter, he came to Belgaum and settled and suit A-schedule property in the year i966 and had planted restraining expired The suit injunction declaring that the Will dated 24.i2.i999 alleged to have son Their father The case of the plaintiff was that, Belgaum. The for of of the Late Mohan Kadle was in plaintiff
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In other trees. after their marriage they their respective matrimonial houses. more than 400 Defendants-2 and 3 beIng daughters of late Mohan Kadle, have been mango trees and various residing
is concocted, false and bogus document. Defendant-i in defendants, got created the alleged document, which Is a dated 24.12.1999 in favour of defendant-i and the said will order to grab the entire suit property of plaintiff and sham and colorable document. That their father was not In a acting prejudidal to the interests of the plaintiff. late Mohan Kadle have share in the schedule properties and such a situation, defendant-i has got the said will executed and mental health was not stable and by taking advantage of position to understand the effect of the Will as his physical Belgaum due to old age. Thus, defendant-i started Though, plaintiff requested the defendant-i that all the legal heirs of 3. from the father and the said Will was registered in the office of the Registrar at Belgaum. PlaIntiff’s father passed away on 21.11.2004 in He had never executed the Will
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Defendant-i ruled out any partition. they are required to be given their respective share In the same. constrained possession. was to and separate Hence, plaintiff file suit for partition
the the defendants and admitted that the suit A-schedule property the suit schedule property In favour of defendant-i under the Defendant-i father out of his own income. registered Will dated 24.i2.99. earned name as schedule property and claimed that the father of the plaintiff between Arbuthnut & Co. Ltd., in Mumbal. It was a British Company. admitting healthy and capable of understanding. was acquIred by the father of the plaintiff and defendants. Their father was hail and Defendants’ father had relationship and and defendants, has executed registered Will bequeathing and was working as Business Executive in MIs Glilanders A-schedule property was purchased by their Business 4. Executive. However, denied that the plaintiff has any share In the suit plaintiff good Plaintiff had left the house of flied separate written statements He was well educated
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the defendant at the age of 21 years. The relationship between defendant’s father and plaintiff had strained much prior to the birth of defendant-i.
in defendant-i was also not attended by plaintiff. mother prior to her death. mother died in 1997. mother to plaintiff, but plaintiff had not attended the funeral. defendant gave documents. Though the defendant Informed the death of the Father very he was working at various educatIon to the plaintiff. places. diploma Engineering and of the a Mechanical good Plaintiff acquired Even at 1 death anniversary which was performed by PlaIntiff had never come to see his 5. He was very well placed in the society. Defendant’s He only came to collect the
He suffered the stroke on His father in thereafter he became handicapped and crippled. Defendant-i after completion of his SSLC, suffered after became defunct on his part. account of prolonged treatment given by the doctor and paralytic stroke and as such, he discontinued his studies and was looking him and helping cultivation of
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father. ailment. partition and denied cordial relationship with plaintiff with the suit. agricultural property. from his father, by taking advantage of his old age and With these pleas the 1 defendant contested the He denied the claim of the plaintiff for He denied that this defendant-i had taken the Will
separate the statement. contested defendant-3 Defendant suit written no.2 However, by 6. filing
supported the plaintiff.
framed the following issues:
the ‘Will’ dated 24.12.99 Whether bogus proves that concocted? false, and plaintiff is 1.
dated 24.12.1999 executed? has Whether the defendant proves that Will been 2. validly
m share In the suit schedule property? 3. Whether the plaintiff is entitled to 114
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independent witnesses. himself as PW.i and got marked Ex.P.i to P.10. On behalf of Defendant-S is attesting witness to 8. Before the trial Court plaintiff got examined DW.1 is defendant-3, DW.2 is defendant-i, DWs-3 and 4 are the Will. defendants, 5 witnesses were examined as DW.1 to DW.5.
decree of the Trial Court, the 1 properties. It Is against the said findings and judgment and Consequently, It held issue no.2 in negative and held that defendant No.1 has 9. The Trial Court on appreciation of evidence, held failed to prove the validity of the Will, accordingly, held that, th share in the suit schedule g defendant Is in appeal. that the plaintiff has proved that the Sale Deed dated 24.12.1999 is bogus and concocted. the plaintiff is entitled for 114
the properties are self-acquired properties of the father of the 10. Hemalekha, learned Counsel for plaintiff and defendants. He has admitted that the father was well as in his evidence has admitted that the suit A-schedule defendant-i submitted that, the plaintiff In his pleadings as Smt
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as gave very good education to the plaintiff. has executed registered Will Ex.D.39. has also admitted that he worked at various places and took earning a good income. late Mohan Kadie. voluntary retirement and settled in life. He has also admitted Karnataka College and she is well settled and her daughter is married and settled. he became handicapped due to stroke he suffered while he was studying not continue education Further, admits that, only defendant-i plaintiff are sons and defendants 2 and 3 are daughters of plaintiff completed diploma in Mechanical Engineering. working in U.S. who could his In 1965 itself Plaintiff has not disputed the fact that his father He He also admits that defendant-2 is also He admits that defendant-i and He also admits that the plaintiff’s father in I PIJC. In his evidence that, defendant-3 was working as Professor in
nd death anniversary of his father was not that he could not attend funeral of his father and his mother. attended The plaintiff’s evidence itself 11. In the cross-examination, plaintiff has admitted Even the V and 2 by the plaintiff.
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throughout. admitted that defendant-i had become handicapped and was depending self-acquired propertIes of late Mohan Kadle. proves that the plaintiff was well educated and well placed and proves that the relationship between the plaintiff and the on his and was living with him all father was not cordial and it was strained. Further, It is father It is also admitted that the suit properties are
circumstances, the father out of his own love and affection Father being an educated having served In a British has suffered has executed he was hail and healthy and he died nearly after become dependent and he was living with him. It Is in these Registered Will Ex.D-39 discloses the reason as paralytic stroke and concern to the defendant-i had executed the registered Company as a Business Executive and when the Will was to why other children were excluded In the Will by the father. and and The father has stated that the other children are well placed five years thereafter. Plaintiff has admitted in his evidence WIll. i2. defendant-i
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that even during 1999 their father was looking after the• agricultural land i.e., when the Will was executed.
depends on the circumstances under which the testamentary document has come into existence. These admitted facts do not create any doubt or The exclusion of other suspicion in bequeathing the entire suit schedule property children is not by itself is a reason to doubt the genuineness 13. of the Will. only May be It is one of the circumstances but it in favour of defendant-i.
Karthyayani Amma and Others, has observed that the the ground that other children have not been given any share suspidous circumstances. She also submitted that the trial Court only on submitted that, the Apex Court in the judgment reported in factor which would lead to the conclusion that there exist deprivation of a due share by the natural heirs Itself is not a AIR 2008 S.C300 In the case of Savlthrl & Ors. vs. Further, 14. is not in consonance with evidence on record. in the Will, has held that the Will is not genuine. This finding
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these other natural heirs of their legitimate share is not a ground to expenses of the treatment of his father and the testator was sister circumstances, the Supreme Court held that deprivation of one he had not attended to him, he has not even met the In the said case son had not taken care of his father, with his and child. Taking hold that there exists suspicious circumstances. living
Shankar & On. has held deprivation of natural heir of the the case of P.N. Balakrlshna & On Vs. H. B. Bhavani natural shares by itself is not a circumstance to say will Is suspicious. 15. Learned Counsel also submitted that this Court held In the judgment reported in 2010(2) AIR KAR. 533, in
DW..5 has been examined who has stated in his evidence that, after going through the Will, the testator has put his signature of the testator is admitted, the attesting witness signature, and DW-5 saw the testator putting his sIgnature on the Will. This To prove the Will apart from that It is registered, He identifies the signature of the testator.
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proves the due execution of the Will and also proves that Despite that the trial Court wrongly held that the Will jr not proved. there was no suspicious circumstance dothing the Will
circumstance as to the genuineness of the Will Defendant-3 submItted that, once, if the father who excludes 16 affection to all the children. He would not have bequeathed his natural succession it creates a serious doubt as to the Sri C .V. Angadl, learned Counsel appeanng for 1 Exclusion of the other sharers is a strong and suspicious the entire suit schedule property only in favour of defendant genuineness of the Will. In this case, the father had love and
ne fur ra f r au e ‘e he and aico participated in the final rites of ‘us father. upporti gtl-efi dirgs fthetraic ur Sachi 1 co Id 17 S el Bichu. learned Court.el for the Merely p b b p renc bc ta na c nno tçc 1a tif tratid trat s mtted that the plaintiff could not attend the funeral as he was away plaintif a iontsip of ot atte. id ,4 Ins
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cancer, has forcibly got the signature on the Will, as such, and the circumstances that the father was suffering from children In the testamentary document and submitted that plaintiff with his father was strained. He also submitted that the said Will Is not a genuine Will. there was no reason for the father to exclude the other defendant-i taking advantage of the old age of the father
has rightly held that the Will Is not proved. exclude the daughters from the Will. affection towards all his children and as such the Trial Court 5, submitted that there was no reason for the father to Sri V.A. Byatnal, learned Counsel for respondentHe had great love and i8.
i9. In the light of the above submissIon, the points that arise for consideration are:
Ex.P39, by removing all 1. Whether the first defendant has proved the Will - drcumstances? suspidous
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the Will. executed from the father. has taken advantage of such a situation to get the Will registratIon of the Will and also the signature of the father on not disputed execution and What is disputed 20. The physically and mentally sound and stable and defendant-i plaintiff has Is that the father was not
that father wanted the plaintiff to go to U.K. the husband of defendant-3 was Gujarathi. the father had great attachment to the property. as against the wishes defendants belongs to Saraswath Brahmin community but defendant-3 interest. parents. not admits gave famous She got married in 1970. purchased the property after resigning from his Job. education institutions. completed Diploma in Mechanical Engineering In 1965. was Professor at Karnataka was 21. any show In the evidence plaintiff admIts that his father good plaintiff However, the College, Dharwad. working a Her marriage of the Plaintiff and did him He admits that He He He His in
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As defendant-I year PUC, when he suffered paralysis. Defendant-I telephoned him and informed plaintiff about the serious condition of their mother. Defenant-1 is a matriculate. paralysis stroke, he discontinued his college. It was in I due to viral infection, her death come to was suffered Belgaum. and then discontinued. prior to had One year he went to college he 22. Plaintiff adt’nits that, defendant-2 had passed SSLC. two days to Belgaum his mother was on death bed. But, by the time he came Plaintiff’s mother died of old age and by He suffered the same
attended the death anniversary of his mother, he stated t.hat that he was informed or: ohone snout the deatn of his father attend the death anniversary of his mother. whether his mother was bed-ridden for six months and what about the illness. was away Beigaum for his avocation, and he could not come to know he from did. he he was in service and his father told him that, no need to 23. A specific question was asked to the plaintiff as to He also admits He was specifically asked whether he PlaAnhff has answered that
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defendant-i was looking after the transactIons. requesting not to make payment to anybody from the admits that he had not mentioned as to the monetary Sanmathl account of his father. pleads ignorance as to the cultivation of crop thereon and father’s death anniversary and further admits that on the Defendant No.2 got married in 1968. taking treatment. Co-operative yearly contract of mangoes given tot he buyers. bank Punjab 24. 13 and condition of his father in the pleadings. itself. Since he was informed on 22.11.04 about the death of National th day ceremony of death of his father he wrote a letter to his father on 21.11.2004, he could not attend the funeral of his father. know his father was suffering from cancer. know that the cremation had taken place on 21.11.2004 Bank on 22.11.2004, but states that, on 23.11.2004 he came to He also came to He does not even know where his father was He also He also admits He also He admits that he had not attended his
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1%
sisters married in 1968 and 1970 are also well placed. parents and himself as he was away from the father for long others were well educated and settled in life. time. It Is also admitted that, except the defendant No.1, all also shows there was difference of opinion between the 25. The evidence of the plaintiff categorically shows working at various places till his retirement and his two that he was given good education by his father and was It
the defendant-3. Defendant-3 does not dispute that the defendant No.1 is evidence 26. physically handicap person. SimIlar is of
Testator was worldly attesting witness. signature of the testator on the Will Is also not in dispute. cross-examined at length, but nothIng has been elicited. The 27. 2004. The evidence shows that, though he was suffering was mentally and physically sound. Though the attesting witness DW-5 was from Cancer, but was still working and cultivating lands. He Will is executed In 1999 and the testator (father) died In WIll Is a registered document. It is attested by an
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wise, educated, he had served as business executive in a on the date of execution of the Will. There is nothing on He was looking after the agricultural land even as private British company and had earned good name and record which shows that he was incapable of understanding income. or mentally incapable of understanding.
Each case depends on the facts and circumstance of that hold that the will is dothed with suspldous drcumstances. It is not always the exclusion of natural heir or case. natural successor or natural inheritance would be a ground to 28.
The evidence also shows that defendant-3 was plaintiff was given good education by his father. working as Professor in Karnataka College, Dharwar, and it He had He admit that he worked at various places and retired from compieted his Diploma in Mechanical Engineer in 1965 itself. service. had 4 children. Two sons and two daughters. The first sonalso shows that against the will of the parents she had 29. In this case, facts are very clear that the testator
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married to a Gujarathi and defendant-2 has not contested the suit and she is also married in 1968 and is settled.
handicapped and crippled. matriculation, when he was studying in PUC-I, due to wrong paralytic 30. suffered and placed and one is physically handicapped and not capable of himself was lookIng after him, could have Ignored the father Amongst 4 chIldren, 3 children of maintaining himself, and was dependant on his father and In these circumstances, as father, In a case where all children are well whom the handIcapped son stayed all throughout and father his property to a son who was dependant on him rather than maIntaInIng himself, dividing the same amongst the other children as they were it cannot be said that the father with of the testator, only defendant-i could not continue his well settled In life. It is admitted fact that after he completed his treatment stroke he became were well placed and one has become handicapped incapable There Is no dispute that amongst the 4 children education. he lived with his father. he could not have thought anythIng better than bequeathing
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rhis is very st ong i ther natural means, they are not educated and they have no income It Ic not the case of the plaintiff or defendant No.3 that they have no other children treating him also on par with other children. bequeathing the property amongst other ieir al. o handicapped regard to the circumstances would have executed the Will society heir or depnve the natural heir of the share both plaintiff and defendan-3 are educated Comparing them with defendant-i who is physically of such son and could have partitioned the property amongst it cannot be said that the testator having But ira ii star ce to exclude well placed in
I a i caIOr vit jr! sias 10 In ocil cgr s .‘t.r (.Cvr
dc. t ida it &tcrded ver :jq e irqt he pi ft;’e’ ‘ ,‘ n 1
ii I “phr’r 31. N The Tnal Court erroneously ignore’ th o’ the , tis dm tted a ‘airtfhad j-pj
— .r,cd r hit rst ci piaccc, arid af’n the evidenee Psa’ the &i i sij of defenda it-! and aJrni,sio,i of olaintift and defendant-3 hej are c,ei t.ta ‘ p antif’ NC
i eic° j j’la.rti i J data.
. aids,,
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the plaintiff’s relation with the father was not cordial not attend the funeral These circumstances also show that Though he was informed about the death of his fdther, he did
the wishes of her parents. Will Is the ultimate desire evaluate the entire evidence and the circumstances to find are not given share ii the Will, hence, Will is not genuine. These circumstances have been out the ultimate ntention of the testator and not to jump to not considered by the tnal court. and intention of the testator. Court must appreciate and So also, aefendant No.3 who being from a family . sudden conclusion only on the ground that the cther teir 32. of Saraswath Brahmin had marned to a Gujarathi boy against
1 he al o I °rtatcr s tt.cteii.ertarj ocunint i set jve i.tertoi:.,stc. .i dr... inte *ior s clear not o “‘ from the Will bu bajund an’ dutt tat rc.acr c a t .ivh,tit troir the sur o mdi g c r the i r.ese i jltiincte . ,‘e’nsta te eta y neck it Gii...tht sf’d n n ove r 33 i t, 3r c n ejcIGd i. mstar i es and the evidence
0’
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at these the the circumstances, I find the judgment of the trial Court requires absolutely perverse and capricious. circumstance evidence The same is not based to be set aside. very suspicious 34. to disbelieve The trial court has conclusion. Court that the exclusion of other children from the Will is a arriving In my opinion, the reasoning given by the trial failed to appreciate the documentary evidence as well as oral In is on proper appreciation of the evidence. in Will
Accordingly, I pass the following;
ORDER
Will — Ex.D39 is held proved.
The appeal is allowed. Judgment and Decree of the
trial Court is set aside.
The suit stands dismissed with cost.
safr
sub/KNM/
2 issues framed by the court
Whether the father proved the registered Will excluding other children due to suspicious circumstances?
Whether the exclusion of natural heirs invalidates the Will?
Mohan Mohan Annaji Kadle
Mangesh Mohan Kadle
KS. Hemalakra
Saraswat Coop. Bank
Subhash B. Adi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
