Partly allowed

Mugappa S/O Gurushidappa Hadapad @ Unkal, v. Gouravva W/O Dyamanna Hadapad

Karnataka HC29 Aug 2024RFA/100003/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part, setting aside the fabrication finding regarding a Will and Testament. It held the will is valid but confined to the testatrix's share, directing the decree to reflect her bequest of 1/6th share to appellants while noting improper joinder of other heirs.

What did the court decide?

The appeal is allowed in part, modifying the civil court judgment to allow the appeal in the first and second contesting defendants to get the share of the testatrix in the subject matter as per the W

Mugappa S/O Gurushidappa Hadapad @ Unkal, Vs… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12368-DB RFA No. 100003 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 29^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 100003 OF 2015 (PAR/DEC)

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BETWEEN:

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MUGAPPA S/O. GURUSIDDAPPA HADAPAD @ UNKAL, AGE: 48 YEARS, OCC: AGRICULTURIST, R/O. RAMAPUR VILLAGE,

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TQ: HUBLI, DIST: DHARWAD-580024.

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KANTEPPA

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S/O. GURUSHIDAPPA HADAPAD @ UNKAL AGE: 44 YEARS, OCC: AGRICULTURIST, R/O. RAMAPUR VILLAGE,

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TQ: HUBLI, DIST: DHARWAD-580024.

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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SMT. YELLAVVA W/O. SHEKAPPA HADAPAD @ UNKAL AGE: 50 YEARS, OCC: HOUSEHOLD, R/O. HANGARAKIR VILLAGE, TQ AND DIST: DHARWAD-581105.

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SMT. KARABASAVVA W/O. HAMPANNA HADAPAD AGE: 38 YEARS, OCC: HOUSEHOLD, R/O. MUGALI VILLAGE, TQ AND DIST: DHARWAD-581105.

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…APPELLANTS

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(BY SRI. S.A. SANDUR, ADVOCATE FOR SRI. K.L. PATIL, ADVOCATE)

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AND:

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SMT. GOURAVVA W/O. DYAMANNA HADAPAD, AGE: 64 YEARS, OCC: AGRICULTURIST, R/O. BISANALLI VILLAGE, TQ: KALAGHATAGI, DIST: DHARWAD-581204.

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SMT. SAVAKKA NINGAPPA HADAPAD SINCE DECEASED BY HER LRS.

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2(A) SMT. LAXMI W/O. PARASAPPA HADAPAD, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O. BALIGAR ONI, UNKAL VILLAGE, TQ: HUBLI-580031.

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2(B) KUMARI CHENNAMMA D/O. PARASAPPA HADAPAD, SINCE MINOR, REPRESENTED BY HER MOTHER NATURAL GUARDIAN AGE: 16 YEARS, OCC: STUDENT, R/O. BALIGAR ONI, UNKAL VILLAGE, TQ: HUBLI-580031.

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SMT. LAXMI W/O. PARASAPPA HADAPAD, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O. BALIGAR ONI, UNKAL VILLAGE, TQ: HUBLI-580031.

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2(C) NINGAPPA RAMAPPA HADAPAD, AGE: 70 YEARS, OCC: AGRICULTURIST, R/O. BALIGAR ONI, UNKAL VILLAGE, TQ: HUBLI-580031.

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NEELAVVA JAYAPPA HADAPAD AGE: 54 YEARS, OCC: AGRICULTURIST, R/O. TARIHALA VILLAGE, TQ: HUBLI-580026.

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NINGAVVA FAKKIRAPPA NADIGER AGE: 54 YEARS, OCC: AGRICULTURIST, (SINCE DECEASED HER LRS)

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4(A) FAKIRAPPA S/O. GURAPPA NADIGER, AGE: 66 YEARS, OCC: AGRICULTURE,

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R/O: GUDIHAL, TQ: KALAGHATAGI, DIST: DHARWAD-580114.

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4(B) GURUPAD S/O. FAKKIRAPPA NADIGER, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: GUDIHAL, TQ: KALAGHATAGI, DIST: DHARWAD-580114.

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4(C) NAGARAJ S/O. FAKKIRAPPA NADIGER, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: GUDIHAL, TQ: KALAGHATAGI, DIST: DHARWAD-580114.

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4(D) SARASWATI D/O. FAKKIRAPPA NADIGER, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: GUDIHAL, TQ: KALAGHATAGI, DIST: DHARWAD-580114.

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SHIVANAND MALLAPPA HADPAD AGE: 50 YEARS, OCC: AGRICULTURIST, R/O. RAMAPUR VILLAGE, TQ: HUBLI, DIST: DHARWAD-580024.

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CHANDRAPPA MALLAPPA HADPAD AGE: 66 YEARS, OCC: AGRICULTURIST, R/O. RAMAPUR VILLAGE, TQ: HUBLI, DIST: DHARWAD-580024.

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YELLAVVA RAMANNA HADAPAD AGE: 60 YEARS, OCC: HOUSEHOLD, R/O. RAMAPUR VILLAGE, TQ: HUBLI, DIST: DHARWAD-580024.

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MADIVALAPPA RAMANNA HADAPAD AGE: 40 YEARS, OCC: AGRICULTURIST, R/O. RAMAPUR VILLAGE, TQ: HUBLI, DIST: DHARWAD-580024.

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GIRAJAVVA SHANTAPPA HADAPAD AGE: 42 YEARS, OCC: HOUSEHOLD, R/O. KURTAKOTI VILLAGE, TQ AND DIST: GADAG-582101.

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MALLAVVA BASAPPA HADAPAD

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AGE: 44 YEARS, OCC: HOUSE HOLD, (SINCE DECEASED BY LRS)

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10(A) BASAPPA S/O. KENCHAPPA HADAPAD, AGE: 66 YEARS, OCC: AGRICULTURE,

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10(B) ULAVAPPA S/O. BASAPPA HADAPAD, AGE: 47 YEARS, OCC: AGRICULTURE,

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10(C) SMT. RENUKA D/O. BASAPPA HADAPAD, AGE: 43 YEARS, OCC: HOUSEHOLD WORK,

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10(D) SARASWATI D/O. BASAPPA HADAPAD, AGE: 35 YEARS, OCC: HOUSEHOLD WORK,

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10(E) GANAPATI S/O. BASAPPA HADAPAD, AGE: 40 YEARS, OCC: AGRICULTURE,

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10(F) SHANMUKHA S/O. BASAPPA HADAPAD, AGE: 28 YEARS, OCC: AGRICULTURE,

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ALL ARE RESIDENT OF POST: SOMANAKOPPA, TALUK: KALAGHATAGI, DIST: DHARWAD-04.

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SHANKARAPPA ISHWAR HADAPAD AGE: 50 YEARS, OCC: AGRICULTURE, R/O. GOKUL VILLAGE, TQ: HUBLI, DIST: DHARWAD-580030.

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BASAVVA YELLAPPA HADAPAD AGE: 64 YEARS, OCC: HOUSEHOLD, (SINCE DECEASED BY LRS)

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12(A) RUDRAPPA S/O. YALLAPPA HADAPAD, AGE: 58 YEARS, OCC: AGRICULTURE,

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12(B) BASAVANNEPPA S/O. YALLAPPA HADAPAD, AGE: 55 YEARS, OCC: AGRICULTURE,

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12(C) SMT. DYAMAVVA D/O. YALLAPPA HADAPAD, AGE: 48 YEARS, OCC: HOUSEHOLD WORK,

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12(D) IRAMMA D/O. YALLAPPA HADAPAD, AGE: 45 YEARS, OCC: HOUSEHOLD WORK,

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12(E) LAXMAVVA S/O. YALLAPPA HADAPAD AGE: 37 YEARS, OCC: AGRICULTURE,

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12(F) IRANNA S/O. YALLAPPA HADAPAD, AGE: 28 YEARS, OCC: AGRICULTURE, ALL ARE RESIDENT OF SOMANAKOPPA VILLAGE, TQ: KALAGHATGI, DIST: DHARWAD-04.

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…RESPONDENTS

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(BY SMT. GIRIJA S. HIREMATH, ADVOCATE FOR R1, R2 (A TO C) R3 AND R4; SRI SHIVASHANKAR R. AMBLI, ADVOCATE FOR R4 (A TO D); SRI. A.A. KALEBUDDE, ADVOCATE FOR R5 AND R6; R7, R8, R10(C), R10(E), R12(A), R12(B), R12(D), R12(E) AND R12(F)- NOTICE HELD SUFFICIENT; R10 AND R12-APPEAL ABATED; R10(A)-DECEASED; R10(B), R10(D), R10(F) AND R11, R12(C)-SERVED AND UNREPRESENTED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 & 2 OF CPC. 1908, AGAINST THE JUDGMENT AND DECREE DATED:27.11.2014 PASSED IN O.S.NO.184/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND MESNE PROFITS.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the first to fourth defendants in O.S.No.184/2010 on the file of the II-Additional Senior Civil Judge, Hubli [for short ‘ the civil Court ’]. The civil Court, by this impugned judgment and decree, has decreed the suit filed by the first and third respondents and their sisters, Smt. Savakka and Smt. Ningavva [the original second and fourth plaintiffs]. The second plaintiff, Smt. Savakka, has died during the pendency of the suit, and her legal representatives [ the second respondent ] are brought on record. The fourth plaintiff, Smt. Ningavva, has died during the pendency of this appeal and her legal representatives have been brought on record.

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Apart from the appellants and the aforesaid respondents, there are other parties to the proceedings, and these respondents are the legal heirs of Sri. Mallappa. Sri. S. A. Sandur, the learned counsel for the appellant, is categorical that these respondents are arrayed because they would indisputably be entitled to half a share in the suit

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schedule property and that the dispute in the suit and in the present appeal is confined to the appellants and the first and third respondents/the legal representatives of Smt. Savakka and Smt. Ningavva. The appellants’ grievance as against the impugned judgment and decree is examined in the light of this submission, and the parties, for reasons of convenience, are referred to as they are arrayed before the civil Court with the contesting defendants referred to accordingly.

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The undisputed facts are that the propositus, Sri. Fakkirappa, and his wife, Smt. Mallavva, have left behind by their sons, Sri. Puradappa and Sri. Mallappa. The plaintiffs and the contesting defendants claim under Sri. Puradappa and other defendants are the descendants of Sri. Mallappa. Sri. Puradappa has died leaving behind his wife, Smt. Yallavva @ Yallamma, and his five daughters. The couple, Sri. Puradappa and Smt. Yallavva have also had a son but admittedly he has died in his childhood. The plaintiffs are their four daughters, and the contesting

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defendants are the children of the eldest daughter, Smt. Gangavva, who was married to Smt. Gurusiddappa.

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Smt. Yallavva @ Yallamma, the mother, has executed the Will and Testament dated 29.10.2005, which is also registered. The dispute is whether she has executed this Will and Testament and whether she could have bequeathed the land measuring 23 acres 8 guntas in R.S. No.138 of Ramapur village, Hubli Taluk [the suit schedule property - subject property] exclusively to the share of the first and the second defendants [the sons of the eldest daughter, Smt. Smt. Gangavva]. The other aspect of the controversy is whether the suit filed by the contesting plaintiffs is maintainable without including all the properties left behind by Sri. Puradappa inasmuch as Smt. Yallavva has bequeathed three other properties in favour of the first and the second defendants expressly stating that she has bequeathed these properties, as well, in their favour.

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The Court must clarify another aspect before considering the rival case. There is no inter se dispute amongst the contesting defendants either about the exclusive bequeath of the subject property in favour of the first and the second defendants and that such exclusive bequeath is also for the properties that are not included in the plaint, and consequentially, the first and the second defendants, if the afore questions about the Will and Testament are answered against the plaintiffs, these defendants will take the properties to their exclusion.

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The plaintiffs have filed their suit for partition of the subject property adverting to the genealogy as aforesaid and contending as follows. Sri. Puradappa and Sri. Mallappa during their lifetime were cultivating half extent of the subject property as tenants. Sri. Puradappa has died on 15.07.1993. After the death of Sri. Puradappa, Smt. Yallavva and Sri. Mallappa have filed application in Form No.7 for grant of occupancy rights to the subject property and the land tribunal has granted occupancy rights to Smt. Yallavva and Sri. Mallappa.

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The plaintiffs, as regards the demise of Smt. Yallavva and succession, have specifically contended that the first and the second defendants, with an intention to deny the plaintiffs’ legitimate share have colluded between themselves after the death of Smt. Yallavva to fabricate her Will and testament dated 29.10.2005 and obtained revenue records transferred in their name. The plaintiffs have asserted that they have come to know about the fabrication of this Last Will and Testament in the month of August2010 and that this Testament will not bind upon their share and must be discarded with they being given an equal share in the subject property.

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The contesting first defendant has filed his written statement and the other contesting defendants have adopted his written statement by filing a memo in that regard. The contesting defendants have acknowledged that the grant of occupancy rights is in favour of Smt. Yallavva and Sri Mallappa, and they contend that as the legal representatives of the deceased Sri. Puradappa and that consequent to the bequeath by Smt. Yallavva under her last

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Will and Testament dated 29.10.2005, they are entitled to the subject property but also to other immovable properties that are mentioned in detail in the written statement. The contesting defendants have also asserted that Smt. Yallavva has executed last Will and testament on 29.010.2005 in favour of the first and the second defendants because their parents were residing with her at Ramapura and cultivating the lands and because Smt. Yallavva has ensured that the plaintiffs are settled with their husbands in their corresponding places, while also ensuring that the third and the fourth defendants are also accordingly settled.

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The civil Court, in the light of these rival pleadings, has framed six Issues, which inter alia require the contesting defendants to prove that Smt. Yallavva was the absolute owner of half of the extent of the subject property and that they have acquired such interest pursuant to the bequeath under the Will and Testament dated 29.10.2005 executed by her. The civil Court, as regards the burden on the plaintiffs, has called upon the plaintiffs to establish that there was no partition between/

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amongst predecessors-in-interest and that the suit schedule property is a joint family property, while also calling upon them to show that Smt. Yallavva’s last Will and Testament is fabricated.

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The civil Court has answered the Issue on whether the contesting defendants prove that Smt. Yallavva has executed her last Will and Testament on 29.10.2005 against the contesting defendants opining that the aforesaid Will and Testament is shown to be fabricated and not binding on the plaintiffs. The civil Court has consequentially answered all the other issues in the negative. The civil Court has not expressly stated whether the contesting defendants have discharged the burden of establishing due attestation of the Will and Testament as is contemplated under Section 63 of the Indian Succession Act, 1956, but on perusal of paragraph No.19 of the impugned judgment, this Court can only infer that the civil Court has found that the contesting defendants have established due attestation of the Will and Testament but

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the same is shown to be fabricated because the contesting defendants are unable to explain the suspicious circumstance.

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The civil Court has opined that the suspicious circumstances which have not been explained are that [i] Smt. Yallavva has disinherited her daughters without any valid reason, [ii] Smt. Yallavva’s visit to the Sub Registrar’s office at Hubballi to present the testament for registration is not explained free of all doubt, [iii] the contesting defendants are unable to explain custody of the Will and Testament and their witness [DW2] has deposed contrary to the Will and Testament which recites that Smt. Yallavva had detained a copy of the Testament with her during her lifetime, [iv] the Will and Testament is executed about four months prior to the demise and the evidence is that she was not keeping good health for about 5-6 months prior to her demise, [v] a learned member of the bar is examined as a scribe [DW3] but the contesting defendants are unable to explain who has drafted the Will and Testament

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according to the testatrix’s instructions because this witness has turned hostile.

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Sri S.A. Sandur, the learned counsel for the contesting defendants, submits that the civil Court is not justified in identifying the afore circumstances as suspicious and even if those are to be treated as suspicious, the civil Court has failed to examine the evidence on record to assess whether sufficient explanation is brought on record. On the ground of what constitute suspicious circumstances, the learned counsel relies upon the decision of the Apex Court in Meena Pradhan & Ors. Vs. Kamala

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Pradhan & Anr .¹ , to contend that the circumstances must be real, genuine, valid and not a fantasy of a doubting mind and that whether a particular feature would qualify to be suspicious must always be examined in the facts and circumstances of each case.

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Sri S.A. Sandur also contends that the plaintiffs

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have not included three immovable properties despite a

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1 The decision in Civil Appeal No. 3351/2014 decided on 21.09.2023

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reference to the same in the Will and Testament which is set up by the contesting defendants and a detailed reference to these properties in the written statement, and if despite specific defense [and material in that regard], the plaintiffs have failed to include the properties, the suit must fail as it would be a suit for partial partition which would be impermissible in law.

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When queried on whether Smt. Yallavva could have executed the Will and Testament if it is undisputed that she has acquired the properties that have devolved on the demise of her husband, Sri S.A. Sandur makes a valiant effort to persuade this Court. However, this Court must at the outset observe that if Sri Puradappa, was cultivating the property as a tenant with his brother, Sri Mallappa and he has died intestate leaving behind Smt. Yallavva and daughters, Smt. Yallavva could not have taken the subject property absolutely and in that event the subject property/ other properties must devolve to all his class-1 legal heirs including Smt. Yallavva and the Will and Testament must

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be read down to her share in the Subject property and the

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other properties.

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In the light of the rival submission and

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observations as afore, the points for consideration are:

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[a] Whether this Court can take exception with the civil Court’s finding that the Will and Testament dated 29.10.2005 is fabricated and therefore not binding on the plaintiff’s share, and

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[b] If this Court could answer the above question in the affirmative, the appropriate modification of the impugned judgment and decree which will be in accordance with law .

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The contesting defendants, who are required to establish the bequeath under the last Will and Testament dated 29.10.2005 have examined the first defendant as DW1, Sri Basavaraj Basappa Hadapad as an attesting witness to this testament as DW2, Sri Siddanagouda M. Halemani, a learned member of the bar as the scribe is

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examined as DW3. The testimony of DW1 and DW2 are perused, and this Court must observe that these witnesses are consistent in their case that Smt. Yallavva, a resident of Ramapura village, was accompanied by different persons of the village who have attested the Will and Testament along with DW2 and that they have signed the will as testament after she acknowledged that the Will and Testament was drawn on her instructions and she affixed her signature. This Court with this consistent evidence must opine that the contesting defendants have discharged what must be called the first burden and in fact there is no dispute about this because the civil Court has not rendered any finding against the contesting defendants in this regard.

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The Court must examine whether the execution of the Will and Testament is surrounded by suspicious circumstances. It cannot be gainsaid that if some of the natural successors are excluded from the bequest it would constitute a suspicious circumstance and that must be sufficiently explained. The explanation for such exclusion must pass a greater plausible test when the testator or

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testatrix is shown to be aged and not keeping good health. The undisputed facts are, as referred to at the first instance, Sri Puradappa and Smt. Yallavva had six children including a son who has died as a young boy and therefore they had only five daughters. Smt. Yallavva in executing Will and Testament dated 29.10.2005 [if she has], preferred, the sons of the eldest daughter, Smt. Gangamma, over the other four daughters.

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Sri Basavaraj Dyamanna Hadapad, who is examined by the plaintiffs as PW2, has categorically stated in his cross examination that after Sri Puradappa died Smt. Yallavva requested her elder daughter, Smt. Gangamma, and her husband, Sri. Gurusiddappa, to re-locate to Ramapura and the couple accordingly re-located and that Sri Gurusiddappa was looking after all the affairs, including the cultivation of the land. Further, it has come out in the cross examination of this witness [PW2] that Smt. Yallavva, with the assistance of Gurusiddappa, has performed the marriages of all the daughters as also the marriage of his own daughters and they are all residing separately. The

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plaintiffs’ consistent case is that they are not residents of Ramapura village where the subject property is situated, and that Ramapura is Smt. Yallavva’s matrimonial place.

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This Court must also observe that Smt. Yallavva

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has not just excluded her own daughters but also the daughters of the eldest daughter, the sisters of the first and second defendant. There is nothing on record to disbelieve this part of the contesting defendants’ case and if these are accepted, a strong circumstance is established to justify a preference from grandsons though from the daughter. This Court therefore cannot opine that the civil Court’s finding that the exclusion of the other daughters is a suspicious circumstance has remained unexplained. The contesting defendants have explained one of the very important circumstances surrounding the Will and Testament dated 29.10.2005. The civil Court has not examined the evidence of Sri Basavaraj Dyamanna Hadapad [PW2] or the contesting defendants’ case in this regard.

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The next suspicious circumstance which has prevailed with the civil Court is that one of the contesting defendants, who is examined as a witness DW1 [ Sri Mugappa Gurusidappa Hadapad ], has not been able to explain as to how Smt. Yallavva, despite her advanced age, could travel alone to Hubballi for the purposes of drawing up the Will and Testament and presenting it for registration and that the DW2 [Sri Basavaraj Basappa Hadapad] has not explained how he got the custody of the Will and Testament, notwithstanding the expressed terms of the Will and Testament that Smt. Yallavva has retained a copy.

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This Court, while examining whether these circumstances are suspicious and if suspicious, whether there is satisfactory explanation, must first record that it is undisputed that the first and the second contesting defendants resided with Smt. Yallavva from their younger days along with their parents and that Smt. Yallavva has also died breathing her last at Ramapura while residing with the first and second contesting defendants. The

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contesting defendants witnesses [Sri Mugappa HadapadDW1 and the attesting witness, Sri Basavaraj Basappa Hadapad - DW2] have consistently stated, as is corroborated by the very contents of the Will and Testament, that Smt. Yallavva was accompanied by elders in the village who have attested this testament as attestors and that they were all at the Sub Registrar office even before he reached the office. The witness is also categorical that the elders who were present at the Sub Registrar’s office verified from Smt. Yallavva whether she wanted to give the property to the first and second contesting defendants and only when she confirmed the draft and her intention, the Will and Testament was presented for registration.

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This evidence demonstrates that Smt. Yallavva has traveled with the elders of the village, and if this is demonstrated, the fact that one of the contesting defendants who is examined as a witness, has not stated details of her travel, in this Court’s considered view, cannot be treated as a suspicious circumstance. The civil Court

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has opined that this witness’s testimony cannot be given credence because he is the brother of Sri Gurusiddappa [the eldest daughter’s husband] and therefore he is interested in the contesting defendants. This Court in this regard must opine that if only he was the attesting witness and no one else, adverse inference could have been drawn. However, with others also accompanying Smt. Yallavva and attesting the Will and Testament in the Sub Registrar’s office, as is seen in the registered document, his evidence cannot be discarded only because he is related to the contesting defendants from the paternal side.

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The Will and Testament is categorical in stating that Smt. Yallavva will retain custody of the same during her lifetime, and Sri Basavaraj Basappa Hadapad [DW2] is unequivocal in his evidence that Smt. Yallavva handed over the Will and Testament to him. He has indeed stated that he is not able to explain when she handed over the original will to him. This failure has prevailed with the civil Court in opining that the custody of the will with this witness seems

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to be contrived and therefore a suspicious circumstance. The evidence of the DW2 and the contents of the Will and Testament are seen. Smt. Yallavva has stated in the Will and Testament that she will retain custody thereof for her life, and she also states in the same breath that the Testament will take effect after her lifetime. This Court, in the absence of any evidence to indicate that Smt. Yallavva proposed to retain custody of the Will and Testament only with herself for her lifetime, cannot construe the custody of the Will with the DW2 as a contrived circumstance, especially when it is not disputed that Smt. Yallavva was residing with the first and second contesting defendants.

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It is probable that Smt. Yallavva may have handed over the original to the witness and this Will and Testament is registered. Therefore, this Court’s considered view is that it cannot be reasonably opined that there is any suspicious circumstance in Smt. Yallavva visiting Hubballi to get the Will and Testament drawn and present it for registration or in the witness getting the custody of this registered will.

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The next significant circumstance which is found to be suspicious by the civil Court and held against the contesting defendants is that they do not dispute that Smt. Yallavva was not keeping well for about 5-6 months preceding her death and the Will and Testament is executed 4½ months prior to her demise. In this regard, this Court must observe that the Will and Testament itself mentions that she was not keeping good health, as is declared by the Apex Court in Meena Pradhan & Ors. Vs. Kamala Pradhan & Anr [supra] it is settled law that mere physical ailments cannot be telescoped to conclude that there was any difficulty for the testator or testatrix to comprehend the consequence of the act. There is evidence to establish that Smt. Yallavva traveled to Hubballi with the elders in the village and the Will and Testament is drawn on her instructions, and this establishes her sound and disposing state of mind.

¶133

If the plaintiffs who contend that the Will and Testament is fabricated and at the time of her death Smt.

¶134

25 - NC: 2024:KHC-D:12368-DB RFA No. 100003 of 2015

¶135

Yallavva was not in a sound and disposing state of mind, must have brought on record something other than the general statement about the physical ailment to demonstrate that she could not have possessed such state of mind. Smt. Yallavva was aged about 85 years as on the date of the Will and Testament and it would only be natural that she would have some ailments. In the light of the circumstances that are brought afore, and in the absence of any material that her mental faculties had failed, this Court is of the considered view that the civil Court could not have opined that there is any suspicion surrounding due execution of the Will and Testament because of Smt. Yallavva’s mental disposition.

¶136

The last of the suspicious circumstances is the confusion over who has drawn this Will and Testament. A learned member of the Bar is examined as DW3. This witness is indeed treated hostile and cross examined. However, this witness is categorical when confronted with the Will and Testament dated 29.10.2005 that he has

¶137

26 - NC: 2024:KHC-D:12368-DB RFA No. 100003 of 2015

¶138

prepared the draft for the same and he has also identified his signatures in the will. Further the witness is categorical in stating that Yallavva was also involved in giving instructions in drawing of the will while stating that DW2 has also issued instructions. It is only when he is asked to depose that Yallavva has signed the Will in his presence, he has stated that she has not signed in his presence, and it is for this limited purpose he is treated as hostile on behalf of the contesting defendants.

¶139

The signatures on the Will and Testament are seen in this context, and this Court must refer that this witness has signed as somebody who has prepared the draft and not as the scribe who typed out the contents. He has signed the document, and his signature is marked as Ex.D.1(e). This Court is of the considered view that this circumstance cannot be called so suspicious so as to negate the entire bequeath. In the light of the afore the first question is answered opining that the

¶140

27 - NC: 2024:KHC-D:12368-DB RFA No. 100003 of 2015

¶141

civil Court’s finding that the Will and Testament dated 29.10.2005 is fabricated, cannot be accepted.

¶142

On the second point for consideration, this Court must firstly record, as is observed at the first instance that Smt. Yallavva being just one of the class-1 legal heir of Sri. Puradappa, could not have bequeathed the entire property to the exclusion of other class-1 legal heirs. There is no room for any doubt that Sri Puradappa has died leaving behind properties [not just the subject property] to be succeeded by class-1 heirs including Sri Yallavva. All properties left behind by him have not been included in the plaint. The contesting defendants must be in a position to take advantage, but this failure must not result with the dismissal of this suit on the ground that it is a suit for partial partition.

¶143

This Court must record that the suit is instituted in the year 2010 and the parties have litigated for over one and a half decades with certain transfer of the suit as well, and if the parties are relegated to a fresh suit once again,

¶144

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¶145

despite the evidence and the appreciation thereof, there would only be protraction of proceedings. Therefore, this Court, in the peculiarities of this case, especially with both plaintiffs and the contesting defendants not disputing that the controversy inter se is over Sri Puradappa’s half a share and that the other defendants would be entitled to the other half, this Court must observe that the Will and Testament must be confined to Smt. Yallavva’s share and consequentially the first and the second defendants must be entitled to her share in the subject property as also in other properties that may be left behind by Sri Puradappa. Further, this Court must observe that in the final decree Court must explore the possibility of working out equities, including the inclusion of the other properties, keeping these factors in mind. Hence, the following order.

¶146

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¶147

ORDER

¶148

The appeal is allowed in part modifying the civil Court’s impugned judgment and decree declaring that the plaintiffs and the contesting defendants would be entitled to 1/6^th share in half of the subject property and in the other properties that may be left behind by Puradappa and insofar as Smt. Yallavva’s 1/6^th share in these properties, it must devolve by way of bequeath to the first and second contesting defendants.

¶149

The office is directed to draw decree accordingly.

¶150

No costs.

¶151

Sd/(B.M.SHYAM PRASAD) JUDGE

¶152

Sd/(C M JOSHI) JUDGE

¶153

YAN, BVV LIST NO.: 1 SL NO.: 24

Mugappa S/O Gurushidappa Hadapad @ Unkal, v. Gouravva W/O Dyamanna Hadapad

Case brief

What is this about?

What did the court decide?

Mugappa S/O Gurushidappa Hadapad @ Unkal, v. Gouravva W/O Dyamanna Hadapad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

Coram

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