Remanded

Smt. Dejamma v. Sri. Ananda Poojary

Karnataka HC14 Sept 2021RSA/1365/2020

Case brief

AI extract

What is this about?

The High Court set aside the judgments of the Trial Court and First Appellate Court in a suit for declaration of a Will's validity. It held that without examining witnesses acquainted with the attesting witnesses under Section 69 of the Indian Evidence Act, the Will could not be legally proved. Matter remanded.

What did the court decide?

Judgments of Trial Court and First Appellate Court set aside. Matter remanded to Trial Court to examine witnesses acquainted with attesting witnesses. Suit to be disposed within six months.

Smt. Dejamma Vs Sri. Ananda Poojary — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.1365/2020 (DEC/INJ)

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BETWEEN:

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1 . SMT. DEJAMMA W/O LATE VEERAPPA POOJARY AGED ABOUT 60 YEARS

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2 . SRI NITHIN S/O LATE VEERAPPA POOJARY AGED ABOUT 31 YEARS

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3 . SRI RAJESH S/O LATE VEERAPPA POOJARY AGED ABOUT 23 YEARS

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APPELLANTS 1 TO 3 R/AT MABETTU HOUSE KUTHLUR VILLAGE

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BELTHANGADY TALUK-574 109.

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4 . SMT. APPI D/O BABANNA POOJARY AGED ABOUT 80 YEARS R/AT MABETTU HOUSE KUTHLUR VILLAGE

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BELTHANGADY TALUK-574 109.

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… APPELLANTS

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[BY SRI DHANANJAY KUMAR, ADVOCATE]

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AND:

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1 . SRI ANANDA POOJARY S/O LATE VEERAPPA POOJARY AGED ABOUT 43 YEARS R/AT MADABETTY HOUSE KUTHLUR VILLAGE BELTHANGADY TALUK-574 109.

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2 . SMT. GEETHA W/O SUDHAKARA AGED ABOUT 41 YEARS R/AT MADABETTU HOUSE KUTHLUR VILLAGE BELTHANGADY TALUK-574 109.

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3 . SMT. YAMUNA, D/O KARIYA POOJARY AGED ABOUT 59 YEARS R/AT MADABETTU HOUSE KUTHLUR VILLAGE BELTHANGADY TALUK-574 109

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4 . SMT. LEELA W/O LATE KORAGAPPA POOJARY AGED ABOUT 56 YEARS R/AT MADABETTU HOUSE KUTHLUR VILLAGE BELTHANGADY TALUK-574 109. … RESPONDENTS

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[BY SRI KESHAVA BHAT A., ADVOCATE]

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.08.2020 PASSED IN R.A.NO.19/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT BELTHANGADY AND ETC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is listed for admission. Heard the learned counsel appearing for the parties.

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This appeal is filed challenging the judgment and decree dated 18^th August 2020 passed in R.A.No.19/2019 on the file of the Principal Senior Civil Judge and JMFC at Belthangady.

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The factual matrix of the case is that the plaintiffs have filed the suit before the Trial Court in O.S.No.158/2011 seeking the relief of declaration to declare that the registered Will dated 12^th May 1986 executed by late Babanna Poojary is genuine and valid and restraining the defendant No.1, his men, servants, agents, assignees or any persons claiming through or under him in any way dispossessing the first plaintiff from the residential house situated in the plaint ‘B’ schedule property.

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The main contention of the plaintiffs is that late Babanna Poojary executed a registered Will dated 12^th May 1986 in their favour and bequeathed the plaint ‘B’ schedule property while he was in sound disposing state of mind. In pursuance of

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the notice issued by the Trial Court, the defendants No.1 and 2 appeared through their counsel and filed separate written statement contending that the alleged document is void ab-initio as per the Karnataka Land Reforms Act. Based on the pleadings of the parties, the Trial Court framed issues with regard to the plaintiffs proving the Will dated 12^th May 1986 and the defendants No.1 and 2 proving that the said Will is void ab-initio . In order to prove their case, plaintiff No.2 examined herself as PW1 and also examined two witnesses as PW2 and PW3 and got marked documents at Ex.P1 to P19. The defendant No.2 herself examined as DW1 and got marked documents at Ex.D1 to D12. The Trial Court after considering both oral and documentary evidence came to the conclusion that the registered Will dated 12^th May 1986 executed by late Babanna Poojary in favour of the plaintiffs, in respect of the ‘B’ schedule property as genuine and valid.

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5. Being aggrieved by the judgment and decree of the

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Trial Court, an appeal in R.A.No.19/2019 was filed by the defendants contending that the Trial Court has committed an

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error in decreeing the suit. The First Appellate Court also on reappreciation of the evidence available on record dismissed the appeal.

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Being aggrieved by the judgment and decree of both the Courts, the present appeal is filed by the defendants before this Court. The main contention of the appellants is that both the Courts have failed to consider Section 69 of the Indian Evidence Act, 1872, when both the attesting witnesses for the alleged Will are no more. Both the Courts have failed to appreciate the procedure laid down by the Apex Court in case of proving a Will and statutory compliance.

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The learned counsel appearing for the respondents vehemently contended that the attesting witnesses are no more and hence, the scribe has been examined before the Trial Court to prove the Will and further submits that when the scribe has been examined, both the Courts have rightly come to the conclusion that the Will had been proved.

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Having heard the respective counsel appearing for the parties, the point that would arise for consideration of this Court is that whether both the Courts have committed an error in not considering the Section 69 of the Indian Evidence Act. Having heard the respective counsel, it is not in dispute that the attesting witnesses are no more and hence, they have not been examined before the Trial Court. The relief sought before the Trial Court was to declare that the registered Will dated 12^th May 1986 executed by late Babanna Poojary is genuine and valid. When the relief is sought for the declaration to declare that the Will is genuine, a person who asserts that the Will is valid, he has to prove the same. The beneficiary of the Will has to prove that the Will came into existence voluntarily and not shrouded under any suspicious circumstances. Admittedly, the attesting witnesses were not examined and only the scribe has been examined. The scribe is the person who has prepared the document at the instructions of the executant of the Will.

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In order to prove the very execution of the Will

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under Sections 63 and 68 of the Indian Succession Act and the

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Indian Evidence Act, the attesting witness has to be examined. But in the case on hand, when the attesting witnesses are no more, the persons who are acquainted with the attesting witnesses ought to have been examined before the Trial Court in compliance of Section 69 of the Indian Evidence Act but, none of the witnesses have been examined before the Trial Court in order to prove the genuineness of the Will. In absence of noncompliance of Sections 63 and 68 of the Indian Succession Act and the Indian Evidence Act to prove the Will and its execution, I am of the opinion that both the Courts have committed an error in decreeing the suit without considering Section 69 of the Indian Evidence Act and hence, the judgment and decree of the Trial Court and the first Appellate Court requires be set aside and it is appropriate to remand the matter to the Trial Court giving an opportunity to the plaintiffs to prove the Will in compliance of Section 69 of the Indian Evidence Act and in the absence of the attesters. The Trial Court is directed to consider the matter afresh in compliance of Section 69 of the Indian Evidence Act. The parties are directed to appear before the Trial Court on 18^th October 2021. The respective counsel for the parties are

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directed to assist the Trial Court in disposal of the suit within a time bound. The suit is filed in the year 2011 i.e., all most a decade is passed. Hence, it is appropriate to dispose of the matter within six months from 18^th October 2021. The parties are directed to appear before the Trial court without expecting any notice from the Trial court and not to seek any adjournment unnecessarily. With this observation, the second appeal is disposed of.

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Sd/JUDGE

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Smt. Dejamma v. Sri. Ananda Poojary

Case brief

What is this about?

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Smt. Dejamma v. Sri. Ananda Poojary

Case brief

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