Dismissed

Smt Siddagangamma v. Smt Ramakka

Karnataka HC15 Jun 2023RSA/2151/2006

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal. It upheld the finding that the plaintiff proved her relationship as the daughter of the deceased father via evidence under Section 50 of the Evidence Act. The Court also held the will was not properly proved due to insufficient evidence of attestation and lack of scribe's animus attestandii, affirming the lower courts' decree for partition.

What did the court decide?

The appeal was dismissed, confirming the decree of the First Appellate Court which decreed the suit for partition.

Smt Siddagangamma Vs Smt Ramakka — Succession and Inheritance | Karnataka HC (2023)

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NC: 2023:KHC:20708 RSA No. 2151 of 2006 R

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 2151 OF 2006 (PAR)

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BETWEEN:

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SMT. SIDDAGANGAMMA W/O CHOWDAPPA AGED ABOUT 56 YEARS R/O DASALAKUNTE C.N.DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT REPRESENTED BY HER GPA HOLDER D.C.THIPPESWAMY MAJOR.

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…APPELLANT

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(BY SRI. K.N.NITISH, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI SMT. RAMAKKA Location: HIGH W/O LATE CHINNACHOWDAPPA COURT OF KARNATAKA AGED ABOUT 56 YEARS R/O DASALAKUNTE C.N. DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT.

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…RESPONDENT

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(BY SMT.BHARATHI M, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 PASSED IN RA.NO.174/2004 PASSED ON THE FILE OF THE II

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ADDL. DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.1997 PASSED IN OS.NO.227/1995 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC KORATAGERE.

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

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JUDGMENT

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The defendant has filed this appeal praying to set aside the judgment and decree dated 12.01.2006 passed by the II Additional District Judge, Tumkur in R.A. No. 174/2004 and also judgment and decree dated 24.10.1997 passed in O.S. No. 227/1995 on the file of the Civil Judge (Junior Division) and JMFC, Koratagere and prayed to dismiss the suit.

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The parties will be referred as per trial Court rankings.

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The respondent was the plaintiff and the

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appellant was the defendant in O.S. No. 227/1995. The said suit is filed seeking partition and separate possession of the plaintiff’s half share in the suit schedule properties.

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It is pleaded in the plaint that the suit schedule properties belongs to one Chinnappaiah and he got the same in the family division taken place among his brothers. Plaintiff and defendant are the daughters of the said Chinnappaiah. Chinnappaiah died one year back prior to filing of the suit. It is stated that the said Chinnappaiah has not executed any testamentary document in respect of the suit schedule properties. The said plaintiff and defendant being the daughters of deceased - Chinnappaiah are entitled to equal share in the suit schedule properties being Class – I heirs. It is stated that both plaintiff and defendant are in

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joint possession of the suit schedule properties. It is stated that the parties are Hindus and governed by Mithakshara Law. As the defendant has refused to effect partition, on the request made by the plaintiff, the suit came to be filed seeking partition and separate possession of the plaintiff’s half share in the suit schedule properties.

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4. In the written statement, the defendant has

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denied the relationship with the plaintiff. It is stated that

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the suit schedule properties are self-acquired properties of the deceased - Chinnappaiah and the defendant is the only daughter of the deceased - Chinnappaiah. It is stated that the suit schedule properties are exclusively in possession and enjoyment of the defendant. It is further stated that late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under a registered Will dated 23.01.1984 and subsequently the said Chinnappaiah died on 08.12.1994. After the death of Chinnappaiah, the defendant has become absolute owner in possession and enjoyment of the suit schedule properties. It is stated that the plaintiff is a stranger to the family of the defendant and father of the defendant. It is stated that the plaintiff is not the daughter of late Chinnappaiah and claim of the plaintiff is false, frivolous and vexatious and prayed to dismiss the plaintiff’s suit.

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Based on the pleadings, the trial Court has

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framed the issues and additional issues, which reads as follows:

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Issues

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Whether the plaintiff proves that the suit schedule property is the ancestral property of the plaintiff and defendant?

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Whether the plaintiff proves that she herself and defendant are in joint possession over the suit schedule property?

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To what relief the plaintiff is entitled?

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What order or decree?

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Additional Issues

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Whether the defendant proves that the plaintiff is not the daughter of late Chinnappaiah, the defendant is the only daughter of late Chinnappaiah?

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Whether the defendant proves late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under the registered will dated 23.01.1984?

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Plaintiff and three witnesses were examined as

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PWs.1 to 4 and got marked the documents as Exs.P1 to

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P6. The defendant and four witnesses have been examined as DWs.1 to 5 and got marked documents as Exs.D1 to D24. The trial Court after hearing the arguments and appreciating the evidence on record, has answered issue Nos.1 and 2 in the affirmative and additional issue Nos.1 and 2 in the negative and decreed the suit of the plaintiff declaring that the plaintiff is having half share in the suit schedule properties. Aggrieved by the said judgment and decree passed by the trial Court, the defendant filed an appeal in R.A. No. 174/2004 on the file of the II Additional District Judge, Tumkur. After hearing the parties, the First Appellate Court has formulated the following points for consideration:

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Whether the trial Court has erred in decreeing the plaintiff's suit partly without any cost?

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What order?

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The First Appellate Court answered point No. 1

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in the negative and dismissed the appeal confirming the judgment and decree passed by the trial Court. The defendant, challenging the judgment and decree passed by the trial Court and the First Appellate Court has filed this second appeal.

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This appeal came to be admitted to consider the

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following substantial questions of law:

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Whether the court below is justified in law and on facts in holding that the plaintiff is also the daughter of late Chinnappaiah despite the fact that the said factum has not been proved a provided under Section 50 of the Evidence Act?

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Whether the court below is justified in law in recording a finding that the defendant has failed to prove due execution and registration of the registered will dated 23.1.1984 - Ex.D4?

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After receiving the trial Court records, it is

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noted in the order dated 24.03.2010 that exhibits “P series” and “D series” and depositions of the plaintiff’s witnesses are missing. In the said order, direction was issued to the trial Court to send the said documents and both parties were directed to produce the exhibits and depositions. By order dated 11.10.2013, Registrar General was directed to enquire and ascertain the existence or otherwise of those records. The Registrar General has conducted an enquiry and submitted preliminary report dated 26.03.2014 and it is noted that 'B' and 'C' files in O.S. No. 227/1995 were destroyed. Thereafter there was an order dated 04.04.2019 for reconstruction of the records. Learned counsel for appellant filed a memo dated 06.06.2019 along with photocopies of documents marked on defendant’s side. Learned counsel for respondent – plaintiff did not file the document marked on plaintiff’s side stating that they are not available with them. The said photocopies of Ex.D. side marked documents were taken on record. Thereafter,

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an application has been filed under Order XXVI Rule 10-A read with Section 151 of CPC for appointment of an expert to give report on DNA samples of appellant and respondent. The said application, i.e., I.A. No. 1/2022 came to be allowed vide order dated 28.11.2022. With that, the samples of appellant and defendant were collected before the Registrar (Judicial) and sent for DNA test. The DNA test report which was received in a sealed cover was opened in the open Court on 16.01.2023 and it was taken on record. Learned counsel for appellant filed his statement of objections to the DNA test report. In order dated 21.04.2023 it is noted that the said report affirms the relationship between the appellant - defendant and respondent - plaintiff. In the said order it was opined that in view of the decision in the case of Munivenkatappa Vs. Chikkapapamma reported in ILR 1991 KAR 3014 the matter has to be remanded for recording evidence of Commissioner with opportunity to cross-examine and for re-appreciation by Courts below. At that stage learned counsel for respondent – plaintiff

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submitted that the plaintiff would forego the benefit of the order passed on I.A. No. 1/2022 and would confine her arguments based on the evidence already on record and she has filed a memo along with the signature of the plaintiff’s daughter eschewing the benefit of order on I.A. No. 1/2022. In view of the said submission, order on I.A. No. 1/2022 is ordered to be eschewed.

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Heard learned counsel for appellant – defendant and learned counsel for respondent – plaintiff.

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Learned counsel for appellant would contend that Ex.P.5 – survival certificate and Ex.P.6 – mahazar prepared by Village Accountant have come into existence during the pendency of the suit and therefore, no reliance can be placed on those documents. He contends that the evidence of P.W.2 to P.W.4 cannot be considered in view of Section 50 of the Indian Evidence Act as they have not expressed any opinion. He contends that the revenue officials cannot issue survival certificate. The plaintiff has not produced all documents of property, title deeds and

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other documents to prove her relationship. P.W.2 who is the cousin brother of the defendant had enmity with the defendant and therefore, his evidence cannot be relied upon and his evidence is lacking fundamental knowledge of relationship between the parties and P.W.3 and P.W.4 have no special knowledge. Evidence of D.W.2 who is the mother’s sister of the defendant establishes that the plaintiff is not the daughter of Chinnappaiah and defendant is the only daughter of Chinnappaiah. The defendant has produced Ex.D.1 to Ex.D.3 which are title documents of the suit properties which show that she is the only daughter of Chinnappaiah. More so, in the Will – Ex.D.4 there is a mention that defendant is the only daughter. He contends that the learned counsel for plaintiff who is respondent herein has not produced any documents for reconstruction of Ex.P.1 to Ex.P.6 and therefore, no documents are available on record before this Court except the oral evidence of P.W.1 to P.W.4. He further submits that P.W.2 has not stated how he gathered information about the relationship and therefore, his

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evidence under Section 50 of the Indian Evidence Act cannot be accepted. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Dolgobinda Paricha vs. Nimai Charan Misra and others reported in AIR 1959 SC 914 wherein it is held as under:

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“10. The question is whether these statements of Janardan Misra as to his conduct are admissible under S.50, Evidence Act. Learned counsel for the respondent has contended before us that even apart from S. 50, the evidence of Janardan Misra is direct evidence of facts which he saw and which should be treated as directly proving the relationship between Lokenath and his daughters. We do not think that learned counsel for the respondent is right in his submission that Janardan’s evidence directly proves the relation between Lokenath and his alleged daughters, Ahalya, Brindabati and Malabati. Janardan does not say that he was present at the birth of any of these daughters. What he says is that he was present at the

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marriage of Malabati which took place when Lokenath was living and in Lokenath’s house; he was also present at the marriages of the first two daughters of Malabati and also at the time of the Upanyan ceremonies of plaintiffs 1 and 2. This evidence, in our opinion, properly comes within S.50, Evidence Act; it shows the opinion of Janardan Misra as expressed by his conduct, namely, his attending the marriage of Malabati as daughter of Lokenath and his attending the marriages and Upanayan ceremonies of the grand-children of Lokenath. … ….”

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Placing reliance on the above decision he contends the evidence of P.W.2 is not relevant as to the relationship of plaintiff with the defendant and Chinnappaiah. He contends that Chinnappaiah bequeathed his properties in favour of the appellant – defendant by Will dated 23.01.1984 (Ex.D.4). The trial Court and first appellate Court have not placed reliance on the said Will and drawn adverse inference as it was not produced along with the written statement and it was produced after

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completion of the evidence on plaintiff’s side. He contends that if any document is not produced, then the Court can draw adverse inference and not for delayed production. He contends, that one of the attesting witnesses who is examined as D.W.4, his evidence do not establish the due execution of the Will – Ex.D.4. Therefore, the defendant has examined the scribe of the Will as D.W.5 and Section 71 of the Evidence Act enables the party to produce other evidence to prove the Will if the testator examined is not specific as to the attestor signing in the presence of testator and the testator executing the Will in his presence. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of M.B. Ramesh

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(D) By LRs Vs. K.M. Veeraje Urs (D) by LRs. and others, reported in AIR 2013 SC 2088 wherein it is held as under:

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“21. The issue of validity of the Will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW2 that he had seen the

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other attesting witness sign the Will in the presence of the testator, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the cross-examination that the other witness (Mr. Mallaraje Urs), Smt. Nagammani, himself and one Sampat Iyanger and the writer of the Will were all present while writing the will on 24.10.1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement along with the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act.”

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The learned counsel submits that even though

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the DNA test report is in favour of the plaintiff – respondent, but the benefit of DNA test report has been eschewed at the instance of the learned counsel for

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respondent – plaintiff. He submits that on going through the points formulated by the first appellate Court it is clear that the first appellate Court has not applied its mind independently as per the provisions contained under Order XLI Rule 33 CPC.

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Learned counsel for respondent – plaintiff would contend that the evidence of P.W.2 itself is sufficient to establish the relationship of plaintiff with the defendant and their father Chinnappaiah. P.W.2 is the cousin brother of plaintiff and defendant and he is having special knowledge of the relationship and his evidence is relevant under Section 50 of the Indian Evidence Act. Ex.P.5 – survival certificate and Ex.P.6 – mahazar even though they are not available before this Court, but they have been referred to by the trial Court and this fact can be taken into consideration by this Court in their absence also. D.W.1 in his evidence has admitted that P.W.2 is her uncle’s son. Defendant has applied for certified copy of Ex.P.5 – survival certificate and Ex.P.6 – mahazar and her

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application - Ex.D.20 and inspite of possessing the same, the defendant – appellant has not produced the same in the appeal at the time of reconstruction of the documents. D.W. 2 who is the mother’s sister of defendant is residing in another village and she is not having special knowledge of relationship and therefore, the trial Court and the first appellate Court have rightly not considered her evidence. D.W.3 and D.W.4 are not related to the parties and they are residing in some other village and therefore, their evidence is also not relied upon by the trial Court and the first appellate Court. The defendant sent notice to the Tahsildar (Ex.D.21) seeking cancellation of Ex.P.5 – survival certificate and the Tahsildar sent reply – Ex.D.24 stating that Ex.P.5 – survival certificate issued is proper and in that it is mentioned that the defendant has failed to file affidavit to the effect that she is the only daughter of Chinnappaiah. She further contended that when the defendant is the only daughter and as she inherits the property of Chinnappaiah, there was no occasion for Chinnappaiah to execute the Will in her favour. Evidence

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of D.W.4 and D.W.5 is not sufficient to establish the due execution of the Will by the testator and therefore, the trial Court and the first appellate Court have rightly held that the Will is not proved.

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It is not in dispute that the suit schedule properties i.e., item Nos. 1 to 4 are properties of Chinnappaiah. What is disputed is that the plaintiff – Ramakka is the daughter of Chinnappaiah and sister of defendant – appellant. The trial Court and the first appellate Court placing reliance on the evidence of P.W.2 to P.W.4, survival certificate – Ex.P.5 and mahazar – Ex.P.6 have held that the plaintiff has proved her relationship that she is the daughter of Chinnappaiah and sister of defendant.

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Learned counsel for appellant would contend

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that the evidence of P.W.2 is not in consonance with provisions of Section 50 of the Evidence Act. Section 50 of the Indian Evidence Act reads thus:

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“ 50. Opinion on relationship, when

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relevant . – When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

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Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). "

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The Hon’ble Apex Court in the case of Sitaram Nai Vs. Puranmal Sonal reported in AIR 1985 SC 171 has explained the meaning of the term `opinion’. The Hon’ble Apex Court said that it was laid down in Dolgobinda Parich Vs. Nimal Charan Misra reported in

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AIR 1959 SC 914 that, what is relevant is the opinion expressed by conduct, and opinion means something more than mere relating of gossip or of hearsay; it means

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judgment or belief, that is, a belief or conviction resulting

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from what one thinks on a particular question.

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This Court in the case of Paramagonda and others Vs. Bangarewwa and another reported in 2003

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(1) KCCR 145 has held that where there is a dispute regarding the relationship of the parties with the deceased, in a suit for partition of properties of the deceased, the relatives of the deceased having special knowledge of the relationship are competent witness and their evidence is admissible within the meaning of Section 50 of the Evidence Act.

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In the case of Jagadish Prasad Vs. Sarwan

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Kumar reported in AIR 2003 P & H 10 it is held that where a person is in common relation of the parties in suit, his statement relating to relationships between the parties was held to be admissible and believable under Section 50 of the Evidence Act.

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D.W.1 in her cross-examination has admitted

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that P.W.2 – Krishnappa is her elder uncles’ son. Said

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P.W.2 is common relative of plaintiff and defendant. As P.W.2 – Krishnappa is cousin brother of plaintiff and defendant, he is having special knowledge of their relationship with Chinnappaiah. P.W.2 has specifically deposed that plaintiff – Ramakka and defendant - Siddagangamma are the daughters of Chinnappaiah. Therefore, the evidence of P.W.2, who is having special means of knowledge as close relative of the parties, is relevant under Section 50 of the Indian Evidence Act. Evidence of P.W.3 and P.W.4 who are the villagers residing in the same village will also support the evidence of P.W.2.

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Even though it is suggested that P.W.2 is having enmity with the defendant, it is not established. D.W.1 herself in her cross-examination has admitted that there were no disputes between her father and others in respect of suit schedule properties. D.W. 2 is the younger sister of the mother of the defendant. She is residing in some other village. In view of the evidence of P.W.1 to P.W.4 the evidence of D.W.2 is not reliable and accordingly, the trial Court and first appellate Court have discarded the

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evidence of D.W.1 to D.W.4. D.W.3 and D.W.4 are residents of some other village and they are not related to the family of Chinnappaiah. The trial Court and the first appellate Court have noted that Ex.P.5 is the survival certificate issued by the Tahsildar wherein it is stated that the plaintiff is the daughter of Chinnappaiah. The defendant has sought for cancellation of Ex.P.5 by notice (Ex.D.21) issued to the Tahsildar. Said Ex.P.5 is held to be issued properly and the same is stated in the reply of the Tahsildar (Ex.D.24) and it is mentioned that the defendant had failed to file affidavit that she is the only daughter of Chinnappaiah. Therefore, the trial Court and the first appellate Court are justified in law and on facts in holding that the plaintiff is also the daughter of Chinnappaiah. Accordingly, the substantive question of law No. 1 is answered in affirmative.

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Ex.D.4 is the Will dated 23.01.1984. It is the case of the defendant that her father Chinnappaiah has bequeathed his properties in her favour and she is the sole

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daughter as per the Will dated 23.01.1984 (Ex.D.4). Even though the said defence has been taken up by the defendant in her written statement, she did not choose to produce the Will till completion of the evidence on plaintiff’s side. Said Will (Ex.D.4) has been produced at the time of leading evidence by the defendant. Merely because the said Will is produced at a belated stage it is not proper to draw adverse inference that the said Will is not genuine. Adverse inference can be drawn under Section 114 of the Indian Evidence Act only when a party withholds a document. D.W.4 is one of the attesting witnesses to the said Will – Ex.D.4. Evidence of D.W.4 is to the effect that he affixed his signature on a stamp paper in the office of Prabhanna (D.W.5) at his instance when he went to his office and at that time there were several persons in the office of said Prabhanna and has identified his signature on Ex.D.4. He has not stated the presence of the testator - Chinnappaiah at the office of Prabhanna and the testator signing the Will in his presence. Even though D.W.4 did

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not support the defendant he has not been treated as hostile.

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Learned counsel for appellant would contend

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that the other attesting witness is no more and in view of the evidence of D.W.4, the defendant is entitled to examine the other witness to prove the Will as per the provision contained in Section 71 of the Indian Evidence Act. He further submits that the scribe of the Will has been examined as D.W.5 and his evidence establishes the due execution of the Will. Section 71 of the Indian Evidence Act reads thus:

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“71. Proof when attesting witness denies the execution .- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

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This Section enables the parties to prove the

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document when attesting witness denies the execution or does not recollect its execution. Where the attesting

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witness denies or fails to recollect its execution, evidence of the scribe and other witness is admissible to prove its due execution. D.W.4 has only stated that he affixed his signature on the Will (Ex.D.4) as a witness at the office of Prabhanna. He has not denied the execution of the document and it is not his evidence that he is not able to recollect its execution. In the case of a Will the attestor if declared hostile, other evidence showing proper execution of the Will can be relied upon as held in the case of B. Veeramma Vs. C. Ramakrishna reported in AIR 1976 AP 370 .

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Where the attesting witness states that he had not signed the Will but the executant deceased had not put his thumb impression in his presence, it was held that the same could not be termed as denial of execution or failure to recollect the same so as to attract Section 71 of the Indian Evidence Act as held in the case of Gurbachan Singh Vs. Gurdial Singh reported in AIR 2007 (NOC) 2322 (P & H) .

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In the case of a Will it was held that the words

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‘execution of a Will’ comprehend the attestation in testator’s presence; that, therefore, the testimony of a non-attesting witness under Section 71 of the Indian Evidence Act is of no help, and the Will must be held as not properly proved as held in the case of Harish Chandra Vs. Basant Kumar reported in AIR 1974 Ori. 170 .

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D.W.5 is the scribe of the Will (Ex.D.4). It is his evidence that he wrote the contents of the Will as per the instructions of the testator – Chinnappaiah. Said Chinnappaiah came to the office along with two persons namely Chikkanna and Krishnappa. Chinnappaiah affixed his signature and thereafter, the witnesses affixed their signature. D.W.5 has affixed his signature as the scribe. He has identified his signature and signature of the witness – Chikkanna.

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Learned counsel for appellant would contend that the evidence of D.W.5 establishes due execution of

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the Will by the testator - Chinnappaiah as required under Section 63(c) of the Indian Succession Act. The Hon’ble Apex Court in the case of Abdul Jabbar Vs. Venkata Sastri reported in AIR 1969 SC 1147 has held that the act of attestation must be done animo attestandii Ie with the intention to attest; the fact that one’s name is on the document does not make him an attesting witness irrespective of the purpose for which it is there. D.W.5 has stated in his evidence that he has attested his signature on the Will as the scribe. There is no intention of D.W.5 to attest the said Will and therefore signature of D.W.5 on the Will (Ex.D.4) does not make him an attesting witness. The Hon’ble Apex Court in the case of N. Kamalam (dead) and another Vs. Ayyaswamy and another reported in AIR 2001 SC 2802 has held that subscribing a signature on the part of the scribe cannot be identified to be of same status as that of the attesting witnesses. Signature of the attesting witness on a document required attestation is a requirement of the statute thus, cannot be equated with that of the scribe. The animus to attest, is

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not available, so far as the scribe is concerned. Considering all these aspects the trial Court and the first appellate Court have rightly held that the defendant has failed to prove due execution of the Will (Ex.D.4). Accordingly, the substantive question of law No. 2 is answered in the affirmative.

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In view of the above, the appeal is dismissed.

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Sd/JUDGE

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SMJ/LRS List No.: 1 Sl No.: 14

Smt Siddagangamma v. Smt Ramakka

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Smt Siddagangamma v. Smt Ramakka

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