Dismissed

Mr Christopher Stephen Ireland v. Mrs Holly Theresa Ireland

Karnataka HC2 Jul 2021RSA/1590/2016

Case brief

AI extract

What is this about?

A partition dispute among Christian heirs turned on a registered Will asserted by one heir. The Court held the Will unproved and partial admissions insufficient against contesting heirs. It rejected remand, upheld intestate succession and dismissed the second appeal.

What did the court decide?

I.A.No.2/2016 allowed; additional documents, including affidavits and declarations, taken on record.

Mr Christopher Stephen Ireland Vs Mrs Holly Theresa Ireland — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY, 2021

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BEFORE

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

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R.S.A. No.1590 OF 2016 (SP)

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BETWEEN:

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Mr. Christopher Stephen Ireland, S/o Late major E.O. Ireland, Aged about 58 years, R/at Happy Villa, No.200, Main Road, Hope Farm Whitefield, Bangalore – 560 066.

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...Appellant

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(By Sri. Dr. S. Arumugham and Vasanth Fernandes, Advocates)

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AND:

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Mrs.Holly Theresa Ireland, W/o late Major E.O. Ireland, Since Deceased by her LRS. Respondents 2 to 5, 8 to 11 and 13 Who are already on record Vide order dated 02.03.2017

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Mr. Ian Patrick Ireland, S/o late Major E.O. Ireland, Aged about 69 years, R/at Belthur Colony, Near Ganapathi Temple, Attached to Water Tank, Belthur, Kadugodi, Bangalore – 560 067.

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Mrs.Jean E Kern, W/o Mr.Philip h Kern, D/o late Major E.O. Ireland, Aged about 65 years, 2000, North Court, No.B-6, Fairfield, Iowa – 52556, USA. Represented by her GPA Holder, Mr.Philip H. Kern, Ian Patrick Ireland and Mr.Brian Gerard Ireland.

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Mrs.Naomi Patricia Dharan, D/o late Major E.O. Ireland, Aged about 71 years, 12, Pipe Grove Drive, Ellen Brook, Western Australia – 6069.

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Mrs.Margaret Verghese, W/o Mr.Benny Verghese, D/o late Major E.O.Ireland, Aged about 66 years, R/at 18^th Milestone, Somanahalli, Nayaryana Gurukula, Bangalore – 560 082.

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Mr.Vincent Julian Ireland, S/o late Major E.O. Ireland, Aged about 56 years, Since deceased by his LRs; Respondents 2 to 5, 8 to 11 and 13 Who are already on record Vide order dated 02.03.2017.

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Mrs.Ann Ireland, W/o Patrick Watson,

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Aged about 61 years, House no.169, Ambedkar Nagar, Hillside Layout, Whitefield, Bangalore – 560 066.

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Mrs.Susan Hiller, D/o late Major E.O. Ireland, Aged about 60 years, 10, Redgum Road, Wisteria Heights, Pinjarra – Western Austrailia, W.A. – 6208.

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Mr.Robert Bruce Ireland, S/o late Major E.O. Ireland, Aged about 55 years, No.5711, W Avenue M – Space, 193, Guartz Hill, California – 93536.

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Mr.Richard Allen Ireland, S/o late Major E.O. Ireland, Aged about 54 years, R/at 3890, Graphic Centre, Las Vegas, State of Nevada – 89118, USA.

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Mr.Andrew Ireland, S/o late E.O.Ireland Junior, Aged about 25 years, R/at No.169, Ambedkar Nagar, Hillside Layout, Whitefield, Bangalore – 560 066.

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The Assistant Engineer, BESCOM, O & M, Immedahalli Road,

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Whitefield Main Road, Bangalore – 560 066.

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Mr.Brian Gerald Ireland, S/o late Major, E.O.Ireland, Aged about 53 years, House No.111, Ave Maria, Hillside Layout, Whitefield, Bangalore – 560 066.

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…Respondents

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(By Smt.Sreedevi K.B. Advocate for C/R4, R-8, 9 and R10; Sri. K.V.Dhananjay, Advocate for R-2, R5, R7 & R8, R11 & R13;

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Vide order dated 02.03.2017 R-2 to 5, 8-11 and 13 are LRS of deceased R-1 and R-6;

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Notice to R-12 dispensed with vide order dated 02.03.2017;

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Notice to R-3 is held sufficient vide order dated 02.02.2018)

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This R.S.A. is filed under Section 100 read with Order XLII Rule 1 of CPC., 1908 against the judgment and decree dated 28.06.2016 passed in RA No.133/2014 on the file of the VIII Addl. District and Sessions Judge, Bengaluru Rural District Bengaluru, partly allowing the appeal and filed against the judgment and decree dated 27.06.2014 passed in OS No.962/2013 on the file of the II Addl. Senior Civil Judge Bengaluru Rural District, Bengaluru.

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This RSA coming on for Orders this day, the Court delivered the following:

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JUDGMENT

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This RSA is filed under Section 100 R/W Order XLII Rule 1 of CPC against judgment and decree passed by the learned VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru on 28.6.2016 in R.A.No.133/2014, wherein appeal filed against the judgment and decree dated 27.06.2014 passed in O.S.No.962/2013 on the file of II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, came to be allowed in part holding the plaintiff Nos.2 & 3 equally entitled for 1/11^th share each [jointly 2/11^th share] in respect of A & B schedule property.

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In order to avoid confusion and overlapping, parties are referred in accordance with their respective ranking before the trial court.

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The present appeal is preferred by defendant No.1 in O.S.No.962/2013, Mr. Chirstopher Stephen

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Ireland, son of late Major E.O. Ireland. The plaintiffs and defendants are the family members who were originally headed by Major E.O. Ireland, who is no more. The parties have no issues to define that they are governed by Christian law of inheritance. The substance of the claim of the plaintiffs is that the suit schedule property originally belonged to one Major E.O. Ireland. The plaintiff No.1 is the wife, Plaintiff Nos.2 to 4 and defendants Nos.1 to 8 are the children of late Major E.O. Ireland. Defendant No. 9 is the grand son of late Major E.O. Ireland.

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The Suit schedule property consists of 38 guntas of land in Old Sy.No.3/1 and new Sy.No.10/1 and present No.200/1 situate at Pattandur village, Agrahara Main Road, White field post, Bangalore. The same was purchased for valuable consideration by the said late Major E.O. Ireland under the registered sale deed dated 24.8.1961 and it is not in dispute. He

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continued to be the owner of the schedule property till his death. It is further claimed that the said Major E.O. Ireland and the plaintiffs being the family members are residing in the suit schedule property. Defendant Nos.2, 6, 7 and 8 migrated to United States and Australia and they often visit and live with their parents in the schedule property.

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Major E.O. Ireland died in Bengaluru on 21.11.1999 leaving behind his wife, H.T.Irelandplaintiff No.1 herein and 11 children and grand children. During the lifetime of said Major E.O. Ireland he had sold portion of schedule land measuring an extent of 10,000 sq. f.t to his daughter Jean E. Kern, wife of Philip H. Kern, plaintiff No.3 herein and had given her power of attorney and sworn to an the affidavit acknowledging that amount received therein regarding amount received and promised to get the registered sale deed in her favour.

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It is also stated that by virtue of the power of attorney and oral agreement to execute the registered sale deed was effected plaintiffs are inclined to get the registered sale deed in favour of the said plaintiff No.3 in order to complete the promise made by the late Major E.O. Ireland.

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The Plaintiff No.4 was also given a portion of schedule land by his father, where he constructed dwelling house and he has been residing with his family. He has specifically claims that the said major had intention that all the children should jointly and happily reside in the schedule premises. The plaintiff, thus claim that they are in peaceful possession and enjoyment of the schedule property. It is further stated that defendant No.1 started interfering with peaceful possession and enjoyment of the plaintiffs over the schedule property and also threatened his possession.

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In this connection, complaint was lodged and

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also there has been exchange of complaint by one against another. Defendant No.1 also got changed the name in the khata of schedule property in his name which the plaintiff contends as illegal. They had preferred appeal before Assistant Commissioner in RA.No.99/2004-05 but defendant No.1 claims that it was dismissed. However, plaintiffs claim it as disposed off. Defendant No.1 also attempted to demolish the main house of the property and upon lodging the complaint matter went up before various courts. On 21.9.2004, plaintiff No.2 was checking out boundaries erected, at that point of time, defendant No.1 interfered and threatened the plaintiff to evict him from the suit schedule property and was always trying to demolish structure which was existed in schedule property.

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It is also contended that, it came to the

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knowledge that defendant No.1 is claiming property on the basis of Will dated 6-3-1997 alleged to have been executed by Major E.O.Ireland. It is contended that Major E.O.Ireland was not having any intention to execute the Will as stated by defendant No.1 and specifically contended that Major E.O.Ireland was agreed to alienate the property to 3^rd plaintiff and he was intended to sell away the property and assured that he will execute the sale deed with respect to B schedule property and the said Will is concocted and fabricated one and it does not create any right to him. It is specifically contended that Major E.O.Ireland died intestate leaving behind plaintiffs and defendants and they have succeeded to the portion i.e. A and C schedule properties. Thus, the plaintiffs have 3 fold prayers in their plaint, which are as under:

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“a. Pass an order of permanent injunction restraining the defendant

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No.1 his henchmen, workers and agents from illegally dispossessing the plaintiffs from the schedule property.

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aa. Directing the defendants to execute a sale deed in favour of Mrs. Jean E. Kern i.e., the plaintiff No.3 in respect of the schedule ‘B’ property in terms of the oral agreement, General Power of Attorney and affidavit dated 26.12.1998 and in case the aforesaid persons fail to do so, this Hon’ble court be pleased to execute the sale deed.

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b. To declare that the plaintiffs and the defendants are the joint owners of the schedule property.

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bb. Against the defendants for partition and separate possession of plaintiffs 1/12^th share each in the suit schedule property.

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c. Pass an order of permanent injunction, restraining the defendants, no.1, his henchmen, workers and agent from further demolishing any structures.

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d. Pass an order of permanent injunction, restraining the defendant no.1, his henchmen, workers and agent from further demolishing any structures.

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e. Pass an order of permanent injunction, restraining the defendant

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no.1, his henchmen, workers and agents not to alienate the schedule property.

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f. Award costs of the suit and

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g. Grant any other reliefs.

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The defendant Nos.1 and 11 entered

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appearance and filed separate written statement. It is contended that except Major E.O.Ireland, no other person having entitlement to suit schedule property. During the lifetime of Major E.O.Ireland he has executed a Will dated 6.3.1997 in favour of defendant by virtue of the same, he has become the owner of the property and katha was also changed in his name and he is in possession and enjoyment of the same and defendant has let out portion of schedule property to the tenant. On 29-6-2004 plaintiffs trespassed over the schedule property and tried to break open the lock and entered into the property of the defendant and complaint was lodged.

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The defendant No.1 asserts regarding dismissal of R.A.No.99/2004-05 before the Assistant Commissioner. The other averments of the plaintiffs, either promise to sell the property under the agreement either by Major E.O.Ireland or the plaintiff's action to get the sale deed in favour of plaintiff No.3 for full enjoyment and possession by the plaintiff are denied.

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11^th defendant also filed written statement admitting the relationship of parties and acquiring of property by his father. He has specifically contended that father of the 3^rd plaintiff was having intention to alienate 1000 sq.ft. to his daughter and about filing of OS No.1084/2004. It is contended that suit property was self acquired property of Major E.O.Ireland and all the successor are entitled for share in the property and that C schedule property is joint

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possession of plaintiffs and defendants and that he is entitled for 1/12^th share in the same.

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Learned trial judge on the basis of the pleadings and contentions of the parties, framed the issues and answered them as under:

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“1. Whether the plaintiffs proves that the deceased major E.O. Ireland was orally agreed to sell “B” schedule property to the plaintiff for a valuable consideration of Rs.1,00,000/- as contended in the plaint?

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Whether the plaintiffs further proves that she is in absolute lawful possession and enjoyment of the suit schedule property as contended in the plaint?

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Whether the plaintiffs proves that the defendant is causing interference to the peaceful possession and enjoyment of the suit schedule property as contended in the plaint?

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Whether the plaintiffs proves that she was willing and ready to perform his part of contract?

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Whether the defendant proves that by virtue of will i.e., 06.03.99 she has become the absolute owner

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and possessor of the suit schedule property?

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Whether the plaintiff’s proves that she is entitled for half share in the “C” suit schedule property as contended in the plaint?

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Whether the plaintiffs is entitled for the relief of declaration and consequential injunction?

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Whether the plaintiffs is entitled for specific performance of contract?

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Whether the plaintiffs is entitled for partition as claimed in the plaint?

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Addl Issues:-

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Does the defendant No.11 is entitled for 1/12^th share in “C” schedule property as contended?

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What order or decree?

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Answers:-

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Issue No.1 :	In the Negative
Issue No.2 :	In the Affirmative
Issue No.3 :	In the Affirmative
Issue No.4 :	In the Negative
Issue No.5 :	In the Negative
Issue No.6 :	In the Negative
Issue No.7 :	Partly in the affirmative
Issue No.8 :	In the Negative
Issue No.9 :	In the Affirmative

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Addl Issue No.1 :In the Affirmative Issue No.10: :As per final order for the following.

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The trial judge was accommodated with the

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following oral and documentary evidence on behalf of both the parties:

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FOR PLAINTIFF:

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PW1	:	Holly Theresa Ireland
Ex.P1	:	Cc of sale deed
Exs.P2 to P4	:	Tax Paid Receipts
Ex.P5	:	Death Certificate
ExsP6&7	:	GPA
Ex.P8 to 14	:	Photos
Ex.P.15	:	Will
Exs.P.16 & 17	:	Chalan
Exs.P18 & 19	:	Cheques
Ex.P20 to 29	:	Receipts
Ex.P30 & 31	:	Police complaint
Ex.P32	:	Wound Certificate
Ex.P33	:	Letter
Ex.P34	:	Computerized Letter
Ex.P35	:	CD
Ex.P36 to 41	:	Photos
Ex.P42 to 45	:	Postal Copy
Ex.P46	:	Pass Book
Ex.P47	:	Pass Port
Exs.P48&P49	:	Tax Paid Receipts
Ex.P.50	:	Complaint
Ex.P.51	:	Endorsement
Ex.P.52	:	Discharge Summary

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Ex.P.53 : X-Ray Ex.P.54 : Out Patient Slip Ex.P.55to61 : RTC extract Ex.P62 : Orders Ex.P63 : BESCOM Ex.P64 to 72 : Photos Ex.P73 : CD

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FOR DEFENDANTS:

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DW1 : Christopher Stephen Ireland DW2 : Brin Gerald Ireland Ex.D1 : Cc will Ex.D2 : CC Sale Deed dated 24.08.1961 Ex.D3 : Original will dated 06.03.1997 Ex.D4 : Death Certificate of Major E.O. Ireland Ex.D5 : MR 6/01 Ex.D6 to 16 : RCC Extract Ex.D17 : GPA on 11.03.1997 ExsD.18to20 : Mutation ExsD21&D22 : Encumbrance certificate Ex.D23 to 26 : Tax Paid Receipts Ex.D27 &28 : Electricity Bill Ex.D29 : Complaint Ex.D30 : Complaint to IG Ex.D31 : RA 99: 04-05 Ex.D32 : PCR Bo.207/07 Ex.D33 : B – Report Ex.D34 : Complaint Ex.D35 : CC Decree Ex.D36 : Receipts Ex.D37 : Character certificate

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Ex.D38&39 : Acknowledgement Ex.D40to42 : Pass port Ex.D43 : Complaint Ex.D44 : GPA Ex.D45 : Letter

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On conclusion, the suit of plaintiffs came to be partly decreed by the learned trial Judge in O.S.No.962/2013 and the operative portion of the judgment is as under:-

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“The suit of the plaintiff is hereby partly decreed with cost.

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The plaintiffs are jointly entitled for 1/12^th share in the suit schedule property. And defendant No.1 to 10 are jointly entitled for 10/12^th share and the 11^th defendant is entitled for 1/12^th share. The other reliefs claimed by the plaintiff with regard to the relief of declaration and specific performance of the oral agreement is hereby negatived. And the relief of injunction is granted. The 1^st defendant is hereby restrained permanently from interfere with the peaceful possession and enjoyment of the suit schedule property.”

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Being aggrieved by the judgment and decree passed by the trial court, defendant No.1 preferred R.A.No.133/2014 before the appellate court and the said appeal came to be allowed in part and the operative portion of the judgment by the appellate court is as under:

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“This appeal filed by first defendant/appellant is hereby partly allowed against respondents.

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The plaintiffs No.2 and 3 are equally entitled 1/11^th share each [jointly 2/11^th share] in respect of “A” and “B” suit property by way of metes and bounds only. The defendant No.1 to3, 5 to 9 and 11 are also entitled equally 1/11^th share each [jointly 9/11^th ] in respect of “A” and “B” suit properties by way of metes and bounds, if they paid court fee.

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The suit filed by plaintiffs is dismissed against defendants in respect of “C” suit schedule property.

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It is further declared that the plaintiffs and defendants No.1 to 3, 5 to 9 and 11 are joint owners of suit property.

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Permanent injunction order is granted in favour of plaintiffs No.2, 3 against first defendant from dispossessing them illegally, from further demolishing any structure from putting up any construction or development and not to alienate in respect of “A” and “B” suit schedule properties only.

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This court has confirmed findings of lower court in respect of relief of specific performance of contract.

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The suit filed by the plaintiffs is dismissed against 10^th defendantBESCOME in respect of all suit properties.

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Under such circumstances of the case, both parties shall bear their own costs.

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Draw decree accordingly.

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Send entire lower court records along with copy of this judgment forthwith.”

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Being aggrieved by the same, this regular

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second appeal under Section 100 of CPC came to be filed by the defendant No.1.

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The matter was admitted by this Court on

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13.07.2018 to consider the following substantial question of law:

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“ Whether the Courts below are justified in holding that the registered Will dated 6.3.1997 is not proved in accordance with law?”

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However after hearing the parties when the matter was listed for disposal on 01.07.2021, this Court framed the following additional questions of law:

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(1) Whether the plaintiffs are estopped from claiming their share on the basis of the declaration and affidavit as claimed by defendant No.1?

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(2) Whether the adjudication of O.S. No.2465/2006 acts as an estoppel or res-judicata against plaintiffs, filed by defendant No.1 in this case against plaintiff No.1 – Holy Therasa Ireland and defendant No.3, who claimed to have consented by an affidavit?

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Learned counsel for defendant No.1, Dr. S. Arumugham, submits that it is admitted by almost all defendants that the schedule property was disposed of through testament by late Major E.O. Ireland, who was the admitted owner of the schedule property on the date of the execution of the Will. He died on 21.11.1999 on which date the Will became enforceable. The learned counsel further submits that on the date of execution of the said Will in favour of defendant No.1 marked as Exhibit D1, the earlier Will that was executed by Major E.O. Ireland in favour of plaintiff Nos.1 and 3 was cancelled and the said earlier Will executed on 14.11.1995 in favour of plaintiff Nos.1 and 3 was revoked by the said Major E.O. Ireland.

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It was also submitted that by the virtue of the Will at Ex.D1 becoming enforceable the Khatha and other revenue records were mutated in the name

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of defendant No.1 and the objections in regular appeal number RA.No.99/2004-05 before the Assistant Commissioner by the plaintiffs came to be dismissed, thereby confirming the title of defendant No.1. The learned counsel would further submit that the claim of the plaintiffs was for the relief of specific performance as per the plaint claiming that Major E.O. Ireland was having an intention to fulfill his terms which he had made for consideration regarding 10,000 sqft in the schedule property and at that point of time, plaintiff No.4 got himself transposed as defendant No.11 which exposes the collusion among the plaintiffs. It was also submitted that the earlier suit filed in OS No.2465/06 for cancellation of sale deed stated to have been executed by defendant No.3 in favour of plaintiffs.

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The suit filed for cancellation of sale deed stated to have been executed by defendant No.3 in favour of plaintiff No.1 came to be disposed of when

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defendant No.3 filed affidavit in accordance with the terms of the plaint in the suit schedule in OS.No.2465/06.

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The learned counsel Sri.K.V.Dhananjay, for the respondent Nos. 2,5,7,8,11and 13 submitted that the said suit did not figure either in plaint or in evidence before the trial Court or the first appellate Court. Later it was submitted by the respondents that the sale deed was executed in favour of the purchaser Mohammed Shafiullah by defendant No.3 by the said sale deed dated 27.9.2003.

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Learned counsel for plaintiffs-respondents chose to submit in common through learned counsel Sri.K.V.Dhananjay that the suit of the plaintiffs, the defence urged by the defendant No.1 is hostile against all the plaintiffs and joint interest of the family members. It was submitted that defendant No.1, has

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produced a Will and claims it as last Will and against the rights of the plaintiffs and the defendants family members. The said Will that was produced before the trial court was marked as Ex.D3 . There are clearly no proof and there is a clear finding by the trial court being upheld by the first appellate court. He further submitted that the father Major E.O. Ireland never had interest of succeeding property in favour of the defendant No.1 to the exclusion of other family members. The said Will marked as Ex.D3 was not proved in accordance with law under the provisions of Section 68 of the Indian Evidence Act. The Will was admitted through recognition effectively and there is no question of proving further by the defendants and both the trial court and appellate court erred in finding otherwise.

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The prime bone of contention between the parties is that the plaintiffs relied on intestate

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succession and per contra, defendant No.1, contends that the inheritance is in accordance to the testamentary succession under the registered Will executed by Major E.O. Ireland in favour of defendant No.1 on 6.3.1997 which came to be enforceable on 21.11.1999 on which date the testator Major E.O. Ireland died. Now the legal position is, the parties both plaintiffs and defendants are not Hindus to get covered under Hindu Succession Act in the matter of succession. This observation is made because it is nobody's case regarding treatment as joint Hindu Family in accordance with coparcener, it is the propriety suit in the name of Major E.O. Ireland as on the date of his death, if the Will was duly executed, Will is proved, it is defendant No.1, who owns the property and if it is not proved plaintiffs and defendants have right over the schedule property to

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the extent of their respective shares. In other words the equal division per branch.

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The next question is regarding the Will. There are two attestors, namely, (1) Bobby K Johnson, (2) Narasimhamurthy. Learned counsel for the respondents Sri.K.V. Dhananjay submits that the Will has no legal efficacy and enforceability for the very reason that it is not proved and has relied on Section 68 of Indian Evidence Act, 1872,which is as

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under:-

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“ 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.”

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Again Mr. Vasanth V. Fernandies for Dr. S.Arumugham, regular counsel for appellant would

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submit that plaintiff No.4, defendant Nos. 3, 5 and 9 have filed affidavits/declarations in support of the claim of the plaintiff which incidentally is infavour of the Will. It is submitted by the learned counsel for appellant that the order sheet maintained by the trial court reflects that such affidavits were filed, however, since the records in the trial court were not available due to mis-placement, the same is not part of the record. Regard being had to the fact that the order sheet confirms the filing of the said declarations/ affidavits and they were filed along with the application under Section 41 Rule 27 CPC.

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By now, it is clear that the suit is filed by the plaintiffs including the relief of partition and separate possession of 1/11^th share in the suit schedule property which is stated to be 38 guntas of land, morefully described in the schedule. The absolute ownership which is majority on the father of

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the plaintiffs is not disputed and the question is, the inheritance of the schedule property by the plaintiffs and the defendants and collectively and defendant No.1 is excluded. But in this connection, the suit is filed by the plaintiffs seeking 3 fold reliefs; viz., (i) for permanent injunction (2) for specific performance and (iii) for partition. The specific performance here is in a different style wherein the plaintiffs aver that the deceased Major E.O. Ireland had a promise to sell the land to the extent of 10000 sq.ft. out of the schedule property in favour of plaintiff No.3 and also for a consideration of Rs.1.00 lakh.

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The next question is, it was the desire of Major E.O. Ireland that the extent of 10000 sq.ft. of property to be sold(made) in the name of plaintiff No.3. They also claim that it was also the desire of Major E.O. Ireland that all the children stood stay in the schedule property and enjoy the same. It is in

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this connection, plaintiffs claim that the sale deed be executed in favour of plaintiff No.3 by way of specific performance. In this connection, if the specific performance sought by the plaintiffs is to identify the area of the land to the extent of 10000 sq.ft., and had to be made exclusively in favour of plaintiff No.3 by way of registered sale deed by receiving balance sale consideration by the owners. In such an event the executant will be the owner of the property. In the circumstances of the case, the exclusive properties either belong to defendants or plaintiffs or collectively in case of intestate succession or defendant No.1 exclusively in case of testamentary succession if defendant No.3 is recognized. Regard being had to the fact that even the purchaser plaintiff No.3 also gets included in the event of intestate inheritance as he is also one of the legal heirs of Major E.O. Ireland.

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Insofar as the execution of the Will is concerned, it is contended by defendants that earlier Major E.O. Ireland had executed a Will in favour of his wife H. Theresa Ireland as per Ex.P15 and the said Will was revoked by Major E.O. Ireland and subsequent will was executed as per Ex.D3.

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Learned counsel submits that Ex.P15 is an un registered Will, but the date is not mentioned and it was executed by plaintiff No.1 in favour of her children. It is also not attested. However the testatrix is plaintiff No.1 who was not absolute owner of the schedule property on that date. Thus, it is not the questioning of cancellation of earlier Will executed by Major E.O. Ireland. Per contra, it is the final Will of Major E.O. Ireland.

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The next aspect is regarding the Will. I have already mentioned that a Will or Bequest are understandably is required to satisfy two ingredients

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i.e. competency and execution. For the procedural aspect of execution, personal knowledge of deposition made in the Will shall be within the knowledge, desire and intention of the testator. Nextly, he shall be competent to execute the Will.

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Competency to execute the Will is both contractual competency and also disposing power in respect of the property under the Will. Insofar as ownership is concerned, the parties are governed by Christian Law of inheritance as such, Major E.O. Ireland was the owner of the schedule property having purchased the same under the registered sale deed mentioned above.

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Insofar as the revenue entries regarding the schedule property is concerned, it is contended on behalf of defendant No.1 Mr. Christopher Stephen Ireland son of Major E.O. Ireland that the plaintiffs have preferred an appeal against the revenue entries

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being made in the name of defendant No.1 in regular appeal No.99/2004-05 and the same was dismissed. Thus, the title of the defendant No.1 was entered in the revenue records. Thus, it is an undisputed fact that Major E.O. Ireland is the owner of the schedule property. Christopher Stephen Ireland, defendant No.1 claims under Major E.O. Ireland. The question would be, whoever claims the schedule property under Major E.O. Ireland will be entitled and that is the settled position of law. Regarding execution of the Will Ex.P15 is concerned, no date is mentioned nor attested nor executed by Major E.O. Ireland. The Will is by his wife Holly Theresa Ireland. More particularly, plaintiffs do not claim under plaintiff No.1- Holly Theresa Ireland. When the matter reached the stage of evidence before the trial court, plaintiff No.1 Holly Theresa Ireland died on 12-1-2006 and evidence was led by PW1-Ian Patrick Ireland plaintiff No.2 and he

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has filed affidavit in chief examination for himself and on behalf of plaintiff No.3 from the side of the plaintiffs. Insofar as defendants are concerned, DW1Christopher Stephen Ireland is examined on behalf of defendants. The said DW1 has not endorsed the complaint of defendants. On the other hand, as submitted at the time of rendering evidence, plaintiff No.4 got himself transposed as defendant No.11 and it was also questioned by learned counsel for defendants. Insofar as evidence of DW2 is concerned, his stand is opposite to that of defendant No.1, rather, he plays card with plaintiffs.

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In the circumstances stated above, the prime point would be:

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Whether the plaintiffs have inherited the schedule property as legal heir of Major Ireland or whether Ex.D3, the Will relied upon by defendant No.1 excludes the right of plaintiffs and other defendants from inheritance.

¶173

¶174

Learned counsel for appellant submitted that Section 58 of the Indian Evidence Act is necessary to be looked into. The said provision reads as under:

¶175

“ 58 Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

¶176

The analysis of learned counsel for appellant is that, among the plaintiffs and defendants, plaintiff No.4, defendant Nos. 3,5 and 9 have given declaration. It is the contention of learned counsel for appellant that, defendant Nos. 3, 5 and 9 have adopted the written statement of defendant No.1 in the trial court which goes to show that they sail with defendant No.1. Defendant No.11 filed the written statement.

¶177

¶178

Thus, according to the defendants, the Will Ex.D3 stood proved by virtue of adoption of written statement by the said defendants. In this appeal, I.A.No.2/2016 is filed by the appellant for production of 17 documents as additional documents which includes Declarations and affidavits under order 41 Rule 27 CPC. Accepting the reasons shown in the affidavit, I.A.No.2/2016 is allowed and the documents produced by the appellant including the affidavits/declarations are taken on record and perused.

¶179

The relevant question here is:

¶180

Whether the plaintiffs established their claim on their own?

¶181

The facts admitted need not be proved. In

¶182

the contextual reference, Section 68 of the Indian Evidence Act is exclusively meant for proof of execution of the document required by law to be

¶183

¶184

attested. Section 63 Indian Succession Act, relates to execution of un privileged Wills and it reads as under:

¶185

“63 Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare,¹² [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—

¶186

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

¶187

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

¶188

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

¶189

¶190

Thus, Sub Section (c) of Section 63 of

¶191

Indian Succession Act states that, the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, no doubt it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation is provided.

¶192

However, coming to the provision which deals with the validity and mandatory aspects. As required under Section 68 of the Indian Evidence Act, the Will invariably is required to be attested as per

¶193

¶194

Section 63 of the Indian Succession Act, 1925. By that time, the Will is required to be attested and as such it falls within the species of documents that required to be attested under Section 68 of the Indian Evidence Act.

¶195

Insofar as proving of due execution of the Will is not complete at least one of the attesting witnesses is examined. However, where a person has attested the Will is not available or dead or whereabouts are not known, the procedure is provided have examined the persons who are acquainted with his signature.

¶196

In this connection, it was submitted by learned counsel for appellant that there are two persons who have attested the Will of Major E.O. Ireland. One is Narasimhamurthy, Banglaore-560 020 and second one is, Boby J. Jonson, Bangalore-66. It is

¶197

¶198

drafted by one N.Jaiprakash Rao, Mrs. Veena Jaiprakash Advocates, Jaypee Associates,

¶199

Seshadripuram, Bangalore-560 020.

¶200

Learned counsel submitted that one witness is from Kerala and his whereabouts were not known and another witness is dead. As I have indicated above, separate procedure is provided where attestor is not available by virtue of his whereabouts being not known or his death, that invariably has to be established before the court in the alternative process. In the present circumstances there are no efforts by defendant No.1 to examine the attestor or attestors, but there is no process regarding taking summons or to find out whether the attestor or one of them is available or as to why they cannot be examined or who are all the alternative persons who are available to examine in such a case.

¶201

¶202

The explanation given by learned counsel

¶203

for plaintiffs is, Section 58 of the Indian Evidence Act provides that facts admitted need not be proved and in such a case, the declaration given by plaintiff No.4, defendant Nos. 3, 5 and 9 would go as a savior to the defendants as their declarations /affidavits will have to be considered as admission which shows the document Ex.D33, Will as proved in the light of their specific admission .

¶204

In the context and circumstances of the case, the parties are at logger heads regarding the execution of the Will. It is to be seen as to every contention and not the declaration/affidavits. The evidence is not considered as a voting in the election. to consider the voice of defendants or majority to prevail over minority. At the end of the day, the legal battle by the defendants and the plaintiffs is that, plaintiffs claim that they are not bound by the Will and

¶205

¶206

defendant No.1 onwards are the children except, defendant No.9 who is the grand son of Major E.O. Ireland in such a case plaintiff No.4, defendant Nos. 3, 5 and 9 are not the agents authorized on behalf of other defendants or plaintiffs and their declaration or affidavits to any extent cannot cover the consent or representation when the execution of the Will is admitted. When the contesting plaintiffs have denied the will admission by fewer plaintiff or defendant does not delete the requirement of proof of attestation. At the end of the day it is a disputed will.

¶207

In other words, the admission has to be specific and precise and the persons admits must know the text of his admission and consequences of his admission. A mere adopting the written statement by three defendants out of ten cannot be taken as a means to rope all the defendants. More particularly, even defendant Nos.3, 5 and 9 are not present

¶208

¶209

When process is required to be established in a particular way no alternate or short cut methods can be used alternatively. As such, the declarations/ affidavits by three defendants and one plaintiff in the circumstances of the case is not of any avail to defendant No.1.

¶210

Finally, learned counsel for appellant would submit that the matter may be remanded to the trial court to enable the defendants to prove the Will. In the circumstances, more particularly stated above and considering the legal position relating to execution and proof of will and the doctrine of estoppel, the prayer for remand is rejected.

¶211

The Will is also not probated. At this stage, learned counsel for appellant would also submit that after filing of the regular second appeal, defendant No.1 applied for probate in P & SC 20/2019 however

¶212

¶213

the same was rejected on 17-3-2021 on the ground that the appeal proceedings would operate as resjudicata and said order is not challenged.

¶214

It is also submitted that the proceedings as

¶215

the original level before the Civil court is of larger scope compared to Probate proceedings and since the legality of the Will was involved before the trial court, first appellate court and this court, the application for probate came to be rejected. In this connection, it is necessary to take into account when the dispute take serious and substantial form in private proceedings and by then converted into original suit, the matter has to be adjudicated with all points of controversy.

¶216

It is seen that, defendant No.10 is the

¶217

BESCOM Engineer and he has been impleaded as a party in respect of the relief of injunction. In the circumstances of the case, I do not find that he was a

¶218

¶219

necessary party. In the circumstances, I have no hesitation to hold that the Will relied upon by defendant No.1 is stated to have been executed by Major E.O. Ireland on 6-3-997 is not proved. As such, he is not entitled for the bequeath as mentioned in the Will and the declaration or affidavits by plaintiff No. 4 and defendant Nos. 3, 5 and 9 in the totality of the circumstances of the case is not of any avail.

¶220

Insofar as the relief sought by the plaintiffs is concerned, the share awarded by the trial court and the appellate court in equal proportion is acceptable. The parties are entitled for succession as intestate successors and not by virtue of testamentary succession.

¶221

Insofar as relief of specific performance as claimed by plaintiffs is concerned, the same is not tenable nor established. In the circumstances, I concur with the findings of the trial court and also of

¶222

¶223

the first appellate court. Thus, the relief of injunction and specific performance are not acceptable and are liable to be rejected. However, the relief of declaration that the plaintiffs and defendants are the joint owners of the property is concerned the said relief gets merged with that of the partition wherein all the children or grand children are entitled for a share per branch. As such, the relief regarding declaration, the same is disposed of. The plaintiffs each are entitled for 1/12^th share. Sofar as the relief of injunction is concerned, it does not arise for consideration and hence, disposed of accordingly.

¶224

Insofar as mutual restraint by defendant or the defendants is concerned it is ordered that each of the plaintiffs and the defendants in entitled to be recognized in respect of his/her share of share in the schedule property till partition by metes and bounds is effected in proportionate stated above.

¶225

¶226

The schedule properties though are

¶227

mentioned as A, B and C, the parties are not at issue to the effect that the entire schedule properties forms the part and parcel of land in survey No.10/1 (Old No.3) to the extent of 38 guntas including the Kharab of 6 guntas. The judgment and decree passed by the trial court and the first appellate court do not call for interference and they deserve to be confirmed. However, there is no appeal against rejecting the portion of the reliefs sought by the plaintiffs. Substantial questions of law are answered accordingly.

¶228

For the foregoing reasons, the appeal is dismissed. No orders as to costs.

¶229

Sd/JUDGE

¶230

akv/tsn*

Mr Christopher Stephen Ireland v. Mrs Holly Theresa Ireland

Case brief

What is this about?

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Mr Christopher Stephen Ireland v. Mrs Holly Theresa Ireland

Case brief

What is this about?

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