Dismissed

Sri Thimmegowda S/O Sri Honnegowda v. Sri Channegowda S/O Late Channegowda

Karnataka HC19 Nov 2020RSA/3211/2006

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a second appeal filed by the appellants against an order allowing an appeal in a partition suit. The court upheld the lower appellate court's finding that the Will was validly proved and that the estate was distributed based on testamentary succession, rejecting claims of intestate succession and invalidity of the Will execution.

What did the court decide?

The regular second appeal filed against RAM No.168/2006 was dismissed.

Sri Thimmegowda S/O Sri Honnegowda Vs Sri… — Succession and Inheritance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO

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REGULAR SECOND APPEAL NO.3211/2006

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BETWEEN:

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SRI. THIMMEGOWDA,

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S/O. SRI. HONNEGOWDA, AGED ABOUT 70 YEARS,

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SRI. NANJUNDEGOWDA, S/O THIMMEGOWDA AGED ABOUT 35 YEARS,

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BOTH ARE R/O BALLENAHALLI, BOOKANAKERE HOBLI, K.R.PET TALUK-571435.

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... APPELLANTS

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(BY SRI K.N.NITISH FOR SRI K.V.NARASIMHAN, ADVOCATES FOR APPELLANT – THROUGH PHYSICAL HEARING.)

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AND:

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SRI. CHANNEGOWDA, S/O LATE CHANNEGOWDA, AGED ABOUT 47 YEARS,

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SRI. SHIVANNA S/O LATE CHANNEGOWDA, AGED ABOUT 42 YEARS,

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BOTH ARE R/O DINKA VILLAGE, CHINAKURALI HOBLI, PANDAVAPURA TALUK.

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SMT. JAYAMMA D/O SRI. CHANNEGOWDA, AGED ABOUT 44 YEARS, R/O SYPANAHALLI, CHINAKURALI HOBLI, PANDAVAPURA TALUK-571435.

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…RESPONDENTS

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(BY SRI V.N.SHANKARE GOWDA, ADV. FOR R1, SRI PRAKASH T.HEBBAR, ADV. FOR R2 & R3.)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 26.8.2006 PASSED IN R.A.NO.168/2006 ON THE FILE OF THE ADDL. DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED: 3.2.2000 PASSED IN OS.NO.42/1992 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.), SRIRANGAPATNA.

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THIS APPEAL COMING FOR ‘DICTATING JUDGMENT’ ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the Judgment & decree dated 26-08-2006 passed in RA No.168/2006 wherein RA No.168/2006 was allowed and the Judgment and decree dated 03-02-2000 passed in O.S.No.42/1992 was set aside and the suit was decreed as prayed for. Being aggrieved by the said Judgment and decree, the defendant – respondents have come up in appeal.

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overlapping, the parties are addressed with the ranks addressed to them before the trial Court.

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In the beginning, the plaintiff filed a suit in OS No.42/1992 seeking partition against Thimmegowda son of Honnegowda, Nanjundegowda, son of Thimmegowda. The plaintiff claimed half share in the total schedule property which was disputed by the defendants and finally the suit filed by the plaintiff came to be decreed in-part. The operative portion of the same is as under:-

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“ORDER

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1. The suit of the plaintiff is partly decreed with costs.

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1. The plaintiff is entitled for half share in suit item-4 and 2/3^rd share in suit – item-5 of suit schedule-II.

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1. The plaintiff is also entitled for 1/3^rd share in the remaining suit schedule properties.

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1. It is made clear that undivided interest disposed of by Will by the deceased Subbegowda in the co-parcenary suit property is binding on the plaintiff and defendants, only to the extent of 1/3^rd share of testator.

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1. The prayer for ascertaining of future mesne profits is rejected. But defendants are directed to render accounts of profit from the date of suit till the date of delivery of possession of the plaintiff’s share.

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1. The partition or separation of suit lands shall be made by the Deputy Commissioner or any gazetted subordinate of the deputy commissioner deputed by him in this behalf, in accordance with such declaration and with the provision of Sec.54 of Civil Procedure Code.

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1. As for as partition or separation of suit house is concerned, it shall be made by the commissioner appointed by the Court.

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1. At the time of making division and allotting shares to the respective parties, if feasible, the disposition of the suit properties made in the Will may be considered.

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1. Draw preliminary decree accordingly.”

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Being aggrieved by the Judgment and decree dated 03-02-2000 passed in O.S.42/1992 by the learned Additional Civil Judge(Senior Division),Srirangapatna, both the plaintiff and the defendants preferred appeals before the Additional District Judge, Mandya. The appeal preferred by the plaintiff is RA No.168/2006 and the appeal filed by the defendants is RA No.191/2004. The Appellate Court dismissed RA No.191/2004 and allowed RA No.168/2006.

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The background of the case are that one Subbegowda is senior-most estate holder or propositus. He had two daughters, namely, Nanjamma @Karagamma and Puttamma. By the

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time, the suit was filed Subbegowda had died. The defendants are Thimmegowda, son of Honnegowda also the husband of Puttamma and Nanjundegowda, son of defendant No.1 Thimmegowda.

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The prime claim of the plaintiff is that the properties mentioned in the suit schedule belonged to Subbegowda, the father of the plaintiff and the deceased Puttamma. He died during 1967 and the said schedule properties by virtue of legal heir ship should have been divided into two equal parts to plaintiff’s branch and deceased Puttamma’s branch.

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The defendants in their written statement contended that all the properties no more belong to Subbegowda. During the lifetime, the said Subbegowda had executed a registered Will dated 0210-1957 bequeathing the properties in favour of the plaintiff, the first defendant and his wife. Thus, on the basis of the said Will the land in Sy.Nos.50/2 and Sy.No.32/27 that fell to the share of plaintiff were given to the plaintiff. It is further stated that all the

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lands are at Ballenhalli village. Subbegowda bequeathed the eastern 1½ guntas of land in Sy.No.32/27, to the extent of 3 guntas of land in Sy.No.2/16, to the extent of 6 ½ guntas of land in Sy.No.2/21, to the extent 1 acre 25 guntas of land in Sy.No.2/18 and Sy.No.2/20. Subbegowda also bequeathed 16 guntas of land in Sy.No.44/4 and southern half portion of the house property also. Thus, it is alleged that the properties were disposed off through the Will wherein the properties were allotted both to the plaintiff and the defendants. It is also the contention of the defendant that at the time of marriage of Puttamma, Subbegowda had assured his son-in-law to give his properties and accordingly the deceased Subbegowda got the registered Will executed on 02-10-1957. As such, out of the total properties, except two items, the defendant claims the balance that has been bequeathed to him.

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Thus, it is pertinent to point out that the

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dispute in principle is intestate succession versus testamentary succession between the plaintiff and the defendants. The defendant No.1 also contended that he was the illatom son-in-law of Subbegowda.

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On the basis of the pleadings and contentions of both the parties, the learned trial Judge framed the issues as under:-

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“1) Whether the defendants prove that the first defendant was an illatom son-in-law of late Subbegowda?

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2) Whether the defendants prove that late Subbegowda had voluntarily and when in sound disposing state of mind, made a Will on 2.10.57 making disposition of properties as stated in para-6 of their written statement?

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3) Whether the plaintiff is entitled to partition and separate possession prayed for? 4) Whether the plaintiff is entitled to mesne profits?

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5) To what reliefs parties are

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entitled?”

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The trial Judge was accommodated with

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oral evidence of PW.1 Nanjamma and documentary evidence of Exs.P-1 to P-11 on behalf of the plaintiff.

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On behalf of the defendants, the oral evidence of Thimmegowda was recorded as DW.1 Rajegowda - DW.2 and Appajigowda - DW3 and got marked the copy of the registered Will Ex.D-1, Exs.D-2 & 3 the Death Certificates and Ex.D-4, the certified

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copy of order in R.Misc.42/92-93 dated 16-3-1999.

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The learned counsel for the appellants submitted that the Will has been rightly proved and all the properties belonged to Subbegowda. He had absolute right to execute the Will. He would further submit that the Will is a document of more than 35

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years as on the date of filing of the suit. Its credentials are to be accepted. If he was the owner of the entire properties, it was within the absolute right of Subbegowda to bequeath the properties in accordance with his whims and fancies.

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The plaintiff was aware of the Will and disposition. The defendants have got the revenue records in their favour. The plaintiff Nanjamma was never in possession of the schedule property at any point of time. She has filed a false case.

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Sri Shankare Gowda, learned counsel appearing for the plaintiff would submit that the properties acquired by Subbegowda are ancestral properties. However, later came into the hands of Subbegowda. But they do not lose their nature. The learned counsel further submits that the Will claimed by the defendants was never proved and has no legal sanctity. The concept of illatom son-in-law is falsely planted by the defendants.

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This Court admitted the appeal and framed the following substantial questions of law:-

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“1. Whether the Courts below have properly considered the document at Exhibit D-1, which in fact would be the

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basis for the entire decision to be taken in the case ?

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2. Whether the courts below have expected the proof of the said document (Ex.D-1) in a manner contrary to the provision contained in Section 90 of the Evidence Act?”

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Before adverting on the other particulars, the background of the case requires to be narrated. Subbegowda was stated to be the owner in control and possession of the entire property. He had no male issues. He had two children, both are female. The first one is Nanjamma @ Karagamma and the second is Puttamma. Subbegowda died during the year 1967. However, the legal heirs or the survivors were Nanjamma @ Karagamma and Puttamma.

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It is necessary to give a look into the joint family with its properties comprising of several members, what would be fate if it is reduced to a sole person. Invariably he will be holding the entire

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property of the joint family, for the very reason, the word joint loses its significance when the entire joint family property of member for various reasons reduced to one.

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The next question would be whether the daughters, would fall under the joint family?

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The succession to the property by a female Hindu has witnessed several significant changes may be in the form of Section 14(1) and (2) of the Hindu Succession Act in the year 1956. Later, the amendment to Section 6A to 6C in the year 2005. Thereafter, the precedent in the case of PRAKASH & OTHERS vs. PULAVATHI & OTHERS reported in AIR 2016 SC 769 . Now, we are having the principle laid down in the Judgment rendered by the Apex Court in VINEETA SHARMA vs.RAKESH SHARMA AND OTHERS reported in 2020(5)Kar.L.J.1 (SC) .

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In the circumstances two more following substantial questions of law would arise for consideration:

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“3. Whether the nature of succession which the legal heirs of survivors of Subbegowda claim as per intestate succession is different from testamentary succession in the total context?

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4. Whether as per Section 6A to 6C does it have overriding effect over the two?”

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In so far as the property that came into the

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hands of Subbegowda is concerned, there is no dispute. However, the plaintiff called those properties as ancestral property which came into the hands of Subbegowda. As such the succession has taken place as per the entire testamentary under Section 6A to 6C of the Hindu Succession Act amended from time to time.

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It is necessary to place on record that last

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Will of a person has override effect over his earlier testamentary but the question is execution of Will or the competency to execute the Will are the paramount factors. If either of them is not there or polluted, Will fails, the said principle apply to the present case.

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As two Regular Appeals were preferred by the parties, wherein RA.No.168/2006 preferred by the plaintiff for succession with equal footing came to be allowed. The another appeal in RA.No.191/2004 preferred by the defendant against the same judgment and decree came to be dismissed.

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This RSA is preferred against RA.No.168/2006. However, there is no appeal against the judgment and decree in RA.No.191/2004 wherein the claim of the appellant was dismissed. Ex.D1 is the certified copy of the registered Will. It is stated to have been executed on 12.10.1957 by Subbegowda, S/o.Basavegowda of Ballenahalli, Bookanakere Hobli

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in favour of Nanjamma, minor guardian Suma and Thimmegowda, S/o.Honnegowda who is defendant No.1.

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It is titled as a settlement deed. It is also stated that Honnegowda’s son Thimmegowda was brought to home and he was managing the house and thereafter, the daughter of Subbegowda was given in marriage and the testator executed the Will to ensure that no controversy would come in. By the time of execution of the Will, Wife of Subbegowda was also no more and the properties bequeathed in favour of Nanjamma’s side, which are stated above and totally, there are three items in the schedule wherein the plaintiff was entitled for half share in suit item No.4 and 2/3^rd share in suit item No.5 of suit schedule – II, the plaintiff was also entitled for 1/3^rd share in the remaining suit schedule properties and it was also made clear that undivided interest disposed of by Will by the deceased Subbegowda in the coparcernary suit property is binding on the plaintiff

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and defendants, only to the extent of 1/3^rd share of testator. The contents of the Will was not brought to the notice of Subbegowda either very Will was not executed by him insofar as the succession of the property is concerned. Both Nanjamma @ Karagamma and Puttamma are Class-I heirs of the joint family, who are entitled to take equal share in the properties. If the entire properties are joint family properties, the restriction would have come into play in the earlier actions wherein the daughters in the presence of male coparceners used to be entitled only on the basis of the notional partition. However, in the judgment rendered by the Hon’ble Apex Court in the case of Vineeta Sharma , the calculation of life of a father as a condition for the daughter to get the share is no more applicable, on the other hand daughters stand at an equal footing with that of the son.

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Insofar as testamentary succession is concerned, the Hindu Succession Act has no

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application regarding allotment of shares which has whims and fancies of the testator and testatrix. Thus, in the first place, the validity in the form of competency and lawful execution of the Will comes for consideration.

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Under the Indian Succession Act, 1925, Will

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is defined under Section 2(h), which reads as under:

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“2………

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(h) “Will” means the legal declaration

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of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”

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Further, when a Will is disputed, it has to

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be proved like any other valid document. I have pointed out in the beginning that party relying on Will has to satisfy the Court regarding execution of the Will and competency of the testator to make the Will, which requires to be attested. As it is required to be attested, the mode of proof of the Will is found under Section 68 of the Indian Evidence Act, 1872 which reads as under:

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“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]”

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When no attesting witness is found, the procedure is provided under Section 69 of the Indian Evidence Act. Insofar as the document is concerned, the original document has been produced and when the person who relies on due execution of the Will satisfies the Court that the original is lost, destroyed or in the possession of any other person and

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cannot be traced. The secondary evidence in the form

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of certified copy is accepted subject to ruler

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provided under Section 68 of the Evidence Act.

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Learned counsel for the plaintiff submits

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that no explanation is given for non examination of the attestators. In this connection, it is to be seen that none of attestators have been described nor examined. Thus, non examination of attestators of Will is one of the adverse material factor, which affects the Will. Secondly, non production of Will has not properly explained and finally, as on the date of Will, it is stated that the age of Subbegowda was 65 years.

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The witnesses have been examined, who were stated to be the children of brothers of Subbegowda. Thus, mandatory provision of the Evidence Act of non examination of witnesses as attestators has been complied. Secondly, no doubt the Will was executed on 12.10.1957 and none of the

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persons have seen execution of the Will. Moreover, it is also stated that Thimmegowda-defendant No.1 is stated to have been brought at an young age by Subbegowda and he was maintaining him and thereafter, he has given his daughter in marriage to him. In other words, he was his son-in-law. With or without the execution of Will, entitlement of defendant would be only between Subbegowda and Thimmegowda and after the death of Subbegowda, Thimmegowda is entitled for very claim in the form of Will. The contention in the form of Will differs even the pleading regarding none of the ingredients of begotten son-in-law.

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The contention is also taken regarding Section 90 of the Indian Evidence Act, 1872 which reads as under:

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“90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers

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proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.— Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”

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As per the description of the Will, unless contrary to the intention of the Will, it will be deemed necessary in the descriptive on the death of the testator. The advantage of the provisions of Section 90 of the Indian Evidence Act cannot be taken for competency of the testator. At the end of the day, it may come to the aid of the person who asserts Will

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which is executed to a reasonable extent but competency cannot be claimed as it is a old document. Misrepresentation or suppression made 30 to 40 years back is not valid once the long period is over.

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In the overall context and circumstances of the Will, as the property was a joint family property, the legal heirs of Subbegowda shared the property in accordance with the provisions of Hindu Succession Act, 1956. However, in the facts and peculiar circumstances of the case, succession to the members of joint family property as mentioned in Clause(1) of the schedule to the Hindu Succession Act, distribution comes in the same line.

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In view of the above, this Court is of the view that both plaintiff and defendants are entitled for the succession of the property. Hence, I do not find any infirmity, illegality or lack of application of mind in the judgment and decree passed in R.A.168/2006 dated 26.08.2006 by the Additional District Judge,

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Mandya. The substantial questions of law are answered accordingly.

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For the foregoing reason, the appeal is

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dismissed .

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Sd/JUDGE

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RSK/LB