Dismissed

Ravi S/O Govindaraddi Budhihal v. Kasturibai W/O Tirakaraddi Budhihal

Karnataka HC4 Dec 2024RFA/100094/2016

Case brief

AI extract

What is this about?

This appeal against dismissal of a suit for declaration of title and injunction upheld the Trial Court's refusal to accept a Will. The High Court found suspicious circumstances including the testator's intermittent unsoundness, lack of signature, unproved thumb impression, and failure to cover all properties.

What did the court decide?

No order as to cost.

Ravi S/O Govindaraddi Budhihal Vs Kasturibai… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:17861 RFA No. 100094 of 2016

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 100094 OF 2016 (DEC/INJ)

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BETWEEN:

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RAVI , S/O. GOVINDARADDI BUDHIHAL, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: SHISHUVINAHALLI, TQ: NAVALGUND. DIST: DHARWAD PIN – 580001.

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SRINIVAS

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARNATAKA

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S/O. GOVINDARADDI BUDHIHAL, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: SHISHUVINAHALLI, TQ: NAVALGUND. DIST: DHARWAD PIN – 580001.

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…APPELLANTS

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(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

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AND:

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SMT. KASTURIBAI W/O. TIRAKARADDI BUDHIHAL, AGE: 72 YEARS, OCC: HOUSEHOLD WORK,

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C/O: ASHOK A PATIL, R/O: MUDHOL, BEHIND BAJAJ AUTOMOBILES, MAHARAJA COLONY, TQ: MUDHOL, DIST: BAGALKOT. PIN – 587101.

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SMT. SHASHIKALA @ YELLAVVA W/O. ASHOK PATIL, C/O: ASHOK P ATIL, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDHOL, BEHIND BAJAJ AUTOMOBILES, MAHARAJA COLONY, TQ: MUDHOL, DIST: BAGALKOT. PIN – 587101.

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…RESPONDENTS

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(BY SRI. N. P. VIVEKMEHTA, ADVOCATE)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.84/2009 DATED 25.01.2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, NAVALGUND AND DECREE THE SUIT BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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Aggrieved by the dismissal of the suit seeking declaration of title and injunction, the plaintiffs are before this Court.

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The plaintiffs’ claim is based on a Will dated 08.11.2008 executed by Tirakaraddi. Tirakaraddi had a wife by the name of Kasturibai and a daughter by name Shashikala, who are Class-I heirs of Tirakaraddi. Tirakaraddi died on 11.11.2008. The plaintiffs, who are the children of Tirakaraddi's brother Govindraddi, claim that Tirakaraddi executed a Will in their favor on 08.11.2008.

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The defendants contested the suit. The defendants disputed the execution of the Will and also took a stand that Tirakaraddi was unsound. The Trial Court dismissed the plaintiffs’ suit by holding that the execution of the Will dated 08.11.2008 is not proved. Hence, the plaintiffs are before this Court.

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It is necessary to refer to certain other facts which are not in dispute. Earlier to the present suit, Tirakaraddi, represented by his wife Kasturibai as his next friend, filed O.S.No.197/2001 for the relief of partition and separate possession of entire joint family properties. Kasturibai, the wife of Tirakaraddi, represented Tirakaraddi as his next friend on the premise that he is unsound. Kasturibai was plaintiff No.2 in the said suit. Said suit was filed on the premise that there is no partition in the family of Tirakaraddi and his siblings, Govindraddi and

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Padmavathi.

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The defendants in the said suit in O.S. No.197/2001, who are Class-I heirs of Govindraddi, contested the suit on the premise that the family properties were already partitioned. The said suit was decreed, granting a share. The defendants in the said suit filed an appeal. The plaintiffs in the said suit also filed cross-objection for not awarding the share to the

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extent claimed in the suit. The Appeal, in RFA No.4034/2012, was allowed by the judgment dated 08.11.2022.

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In the said proceeding, in RFA No.4034/2012, the Division Bench of this Court has concluded that the procedure prescribed in law was not followed before permitting plaintiffs No.2 - Kasturibai, to file a suit on behalf of Tirakaraddi as his next friend. The Court also concluded that the Trial Court could not have held that Tirakaraddi was unsound without there being any enquiry held in this regard.

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Thereafter, the Division Bench of this Court has also concluded that Tirakaraddi was found to be a man who was suffering from intermittent unsoundness of mind as this position was admitted by the appellants in the said appeal. Consequently the plea of earlier partition pleaded in the earlier suit in O.S. No.197/2001 is held to be established.

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In the present, to substantiate their contention based on the Will, the plaintiff No.2 examined herself as PW-1 and examined the attesting witness as PW-2 and son of the scribe as PW-3. The scribe’s son is examined as the scribe was not available when case went for trial.

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The defendants cross-examined the plaintiffs. The defendants took a stand that Tirakaraddi was insane and incapable of executing the Will. They had also disputed the thumb impression on the Will.

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The Trial Court noticed that Tirakaraddi used to sign, but no signature is found on the disputed Will. The Trial Court also observed that there is no explanation as to why a thumb impression is put on the Will instead of signature of the testator who admittedly used to sign. The Trial Court has also held that Tirakaraddi was unsound and he could not have executed the Will.

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It is relevant to note that, when the Trial Court passed the decree, the judgment in RFA No.4034/2012 was not yet delivered.

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Learned counsel appearing for the

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plaintiffs/appellants, Sri.Mallikarjunswamy Hiremath, would contend that;

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12.1. Tirakaraddi had every reason to execute the Will, as his relationship with his wife and daughter was strained. The wife and daughter of Tirakaraddi did not stay with him for more than four decades, and the plaintiffs took care of Tirakaraddi in his old age and for this reason, he has executed a Will bequeathing two properties in favor of plaintiffs.

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12.2. Further, if at all the intention of the plaintiffs was to grab the properties by creating the Will, then the Will would have been in respect of the entire properties of Tirakaraddi and not just two properties mentioned in the Will.

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12.3. Further, due to old age, Tirakaraddi was not in a position to put his signature and as such, he has put his thumb impression and the thumb impression was duly identified by the attesting witness as well as the son of the scribe.

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Learned counsel appearing for the respondents would contend that;

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13.1. There are suspicious circumstances surrounding the Will. The plaintiffs themselves have admitted in the earlier proceedings that Tirakaraddi was suffering from intermittent unsoundness of mind and that no doctor’s evidence is led to show that he was possessing sound state of mind on the date of execution of the Will.

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13.2. There was no explanation as to why Tirakaraddi has put his thumb impression on the Will instead of his signature and that the thumb

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impression is not proved to be the thumb impression of Tirakaraddi.

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13.3. There was no reason for Tirakaraddi to come all the way to the office of the scribe in Hubballi to execute the Will and if at all he had come, there was no reason for him, not to get the Will registered as the office of the Sub-Registrar was very much in the premises where the office of the scribe is located.

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13.4. The attesting witness does not identify any other attesting witness at the time of crossexamination, though he has stated in the chief examination that he is the friend of another attesting witness.

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13.5. The stamp paper is issued in Navalgund. However, the witness in the cross-examination states that the stamp paper is bought in Hubballi from the scribe. In the crossexamination he states that the contents of the

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examination-in-chief are dictated by PW-1 plaintiff No.1.

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This Court has considered the contentions raised at the Bar and perused the records. The following point arises for consideration:

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i. Whether the plaintiffs have proved the execution of the Will dated 08.11.2008?

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Admittedly, the Will is dated 08.11.2008, and Tirakaraddi died on 11.11.2008, that is, three days after the execution of the alleged Will. As far as the mental health of Tirakaraddi is concerned, though there is a dispute as to whether he was totally unsound or not, what is forthcoming is, even the plaintiffs admit that he was mentally unsound intermittently. Even this is the finding of this Court in RFA No.4034/2013.

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This being the position, the burden is heavy on the plaintiffs to dispel the suspicious circumstances surrounding the Will.

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It is also an admitted fact that Tirakaraddi used to sign and admittedly, the Will does not contain the signature of Tirakaraddi. PW-2, the attesting witness, in the cross-examination has stated that his right hand used to shake, as such, he has put the thumb impression. The plaintiffs have not pleaded this aspect in the plaint or at least this is not the evidence of PW-1 in his examination-in-chief. There is no recital in the Will as to why the testator was made to put a thumb impression instead of signature. In the normal course of things, there would have been an explanation. This is noticed by the Trial Court, and the Trial Court has treated this as one of the suspicious circumstances. This Court, on appreciation of evidence is of the view that the view taken by the Trial Court is correct. It is also relevant to note that Tirakaraddi was educated (it is stated that he had taken admission to the MBBS course and had to discontinue). Thus, it is quite reasonable to expect an explanation in the Will as to

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why he has put the thumb impression instead of signature.

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It is also relevant to note that, PW-2, who is said to be the attesting witness, in the cross-examination, has not even admitted the fact that Tirakaraddi had mental health issues. He tried to project as if that Tirakaraddi never had any mental health issues. In fact, Tirakaraddi had mental health issues at least intermittently is an admitted fact.

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On appreciation of evidence of PW-2 it appears that he is not telling the truth. Doubt arises as to the credibility of PW-2, the alleged attesting witness.

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It is also relevant to note that there was a suit pending in O.S.No.171/2001. In the said suit, Tirakaraddi was the plaintiff, and he was represented by Kasturibai, his wife as next friend. The present plaintiffs were defendants in the said suit. The defendants contend that Tirakaraddi was with them

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all along and that they used to take care of him. Despite the fact that the suit is filed stating that Tirakaraddi was mentally unsound, the defendants in the said suit did not bring Tirakaraddi to the Court to get the suit dismissed. This is one of the circumstances which would indicate that Tirakaraddi’s mental health was not so sound. Had it been otherwise, the defendants in the said suit would have brought Tirakaraddi to the Court, and Tirakaraddi would have requested the Court to permit him to withdraw the suit or to allow him to contest on his own. Such a thing has not happened. If at all the plaintiffs version is to be accepted that Tirakaraddi was with them all along, why they did not lead evidence of Tirakaraddi in the earlier suit to establish that he was mentally sound is not forthcoming. This again would indicate that Tirakaraddi was not with the plaintiffs for four decades as alleged.

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It is also further relevant to note that, in the Will itself, there is a recital that a suit is pending in his name. If Tirakaraddi was aware that the suit is pending in his name, nothing prevented Tirakaraddi from appearing before the Court to get the suit withdrawn or to prosecute suit on his own instead of next friend suing on his behalf.

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It is also relevant to note that, the recital in the Will would also indicate there is one more Will in favour of the sons of the legatees. That alleged Will in favour of sons of the plaintiffs has not seen the light of the day.

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It is further relevant to note that, when O.S.No.171/2000 was pending, the present plaintiffs who were the defendants in the said suit, did not bring it to the notice of the Court that the Will is executed by Tirakaraddi. In that event, they had an option of coming on record and withdrawing the suit itself. However, that was not done.

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In O.S.No.171/2000, defendants No.2 and 7 of the said suit, who are the plaintiffs in this case, did not bring to the notice of the Trial Court about the execution of the alleged Will of Tirakaraddi, though Tirakaraddi, the plaintiff in the said suit, died during the pendency of the suit. The plaintiffs No.2 and 3 of the said suit who are wife and daughter of Tirakaraddi prosecuted the suit as the legal representatives of late Tirakaraddi. This Court is of the view that, inaction on the part of the defendants No.2 and 7 in the said suit in not bringing it to the notice of the Court about the execution of the alleged Will, is one of the suspicious circumstances. Had the Will was really executed by Tirakaraddi the said Will would have been produced in the very suit.

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It is further relevant to note that, the thumb impression on the Will is seriously disputed. Credible evidence is not led to uphold the contention that it is the thumb impression of the testator Tirakaraddi.

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Though PW-2 has stated that it is the thumb impression of Tirakaraddi, the evidence of PW-2 is not trustworthy, given the fact that he has not admitted the obvious fact that Tirakaraddi was suffering from mental health issues intermittently.

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Though PW-3, the son of the scribe, is examined to identify the signature of his father, PW-3 has gone to the extent of saying that he was present when the Will was executed. Though he had made a statement that Tirakaraddi executed the Will in his presence, his evidence, which is recorded seven years after the execution of the Will, is hard to believe, considering the detailed particulars of the events surrounding the alleged execution of the Will, in his evidence. It is extremely difficult to believe that a person who is not even the attesting witness can provide such details about the execution of the Will seven years after the incident. It is elicited in the cross-examination that he was 18 years at that time and he was a college

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going student. Thus, his presence in the office of his father (scribe) itself is doubtful on the date of alleged execution of Will.

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It is also relevant to note that, PW-2, the attesting witness, in the cross-examination, has stated that the stamp paper used to draft the Will was bought

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from the scribe in Hubballi. Though Sri.Mallikarjunswamy Hiremath, learned counsel for the appellants, would contend that the said statement cannot be construed as a statement relating to the stamp paper being bought in Hubballi and is to be construed as a stamp paper being bought from a person in Hubballi, it is difficult to accept such contention. The reason is the stamp paper is bought in Navalgund which is a neighboring taluk. Why the scribe from Hubballi will buy the stamp paper from a neighboring Taluk in Navalgund is not explained.

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Admittedly, Tirakaraddi died three days after the execution of alleged Will. It hints that Tirakaraddi was not keeping in good health, more so, in a situation when it is not the case the plaintiffs that his death was sudden and unexpected. It is also relevant to note that, it is the case of the attesting witness that the testator was incapable of putting his signature on account of ill-health. If a person was not keeping well and was incapable of putting his signature on the Will, why he would travel up to Hubballi to execute the Will is the point for consideration. During the hearing, it is stated that residence of Tirakaraddi was about 20 kilometers away from Hubballi. More importantly, in this case, Tirakaraddi died just three days after the execution of the Will.

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The circumstances discussed above cast serious doubts about the health of the testator on the date of execution of the Will. The appellants have not led

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satisfactory evidence to dispel the suspicious circumstances surrounding the execution of the Will

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and his health, particularly the mental health, given the fact that Tirakaraddi was intermittently unsound.

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It is also relevant to note that the thumb impression on the Will is seriously disputed by the defendants. Admittedly, Tirakaraddi used to sign. Defendants contend that the thumb impression on the disputed Will is not that of Tirakaraddi. Appellants have not produced any other documentary evidence which contains thumb impression of the testator to enable the Court to compare the disputed thumb impression with the admitted thumb impression.

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Though the submission that the legatees, if had the intention to grab the properties would have included all the properties in the Will, but the Will contains only two properties, and this aspect rebuts the contention that the Will is concocted sounds

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attractive, is not good enough to dispel the suspicious circumstances already discussed above.

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For the reasons recorded above, this Court does not find any error in the judgment and decree passed by the Trial Court.

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Accordingly, the appeal is dismissed. No order as to cost.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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gab/RKM Ct-ANB List No.: 1 Sl No.: 34

Ravi S/O Govindaraddi Budhihal v. Kasturibai W/O Tirakaraddi Budhihal

Case brief

What is this about?

What did the court decide?

Ravi S/O Govindaraddi Budhihal v. Kasturibai W/O Tirakaraddi Budhihal

Case brief

What is this about?

What did the court decide?

What the court decided

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