Partly allowed

Smt Catherine v. Sri Bernad

Karnataka HC30 Aug 2024RFA/1064/2020

Case brief

AI extract

What is this about?

Partition suit among Christian siblings over properties of their deceased mother. The High Court upheld the mother's registered Will excluding three items from partition, but held that Survey No.39/2A de-notified from BDA acquisition was available for partition, allowing the plaintiff's appeal in part.

What did the court decide?

Plaintiff entitled to 1/4th share in item No.2, item No.3 (35 guntas) and items 6 to 8; claim on items 1, 4, 5 dismissed; modified preliminary decree to be drawn.

Smt Catherine Vs Sri Bernad — Partition | Karnataka HC (2024)

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RFA NO. 1064/2020

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IN THE HIGH COURT OF KARNATAKA, AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE V KAMESWAR RAO AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO.1064 OF 2020

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BETWEEN :

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SMT. CATHERINE, W/O. SHANTHAPPARAJU, D/O. LATE ANOTHANAPPA, AGED ABOUT 60 YEARS, R/AT: NO.117, 2^ND CROSS, 1^ST MAIN, KEMPEGOWDANAGARA, BENGALURU-560119

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...APPELLANT

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(BY SRI. K. NARASIMHA MURTHY, ADVOCATE)

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AND:

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SRI. BERNAD, S/O. LATE ANOTHANAPPA, AGED ABOUT 68 YEARS,

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SRI. ZACARIAS, S/O. LATE ANOTHANAPPA, AGED ABOUT 64 YEARS,

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RESPONDENT NOS. 1 AND 2 ARE R/AT: 123/124, MARIYANNA PALYA, BENGALURU-560024.

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SMT. MARY MAGADALENE, D/O. LATE ANOTHANAPPA, AGED ABOUT 62 YEARS,

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R/AT: 152/2 1^ST CROSS, 1^ST MAIN, ANANTHARAMAIAH COMPOUND, MYSORE ROAD, BENGALURU-560010.

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SRI. KIRAN BALARJ, S/O. ZACARIAS, AGED ABOUT 36 YEARS, R/AT NO:123/124, MARIYANNA PALYA, HEBBAL POST, BENGALURU-560024.

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EMBASSY PROPERTY, DEVELOPMENTS PRIVATE LTD., REPRESENTED BY AUTHORIZED SIGNATORY, MR. SHAILENDRA KONANUR SUBBARAYA, HAVING REGISTERED OFFICE AT FIRST FLOOR, EMBASSY POINT, NO.150, INFANTRY ROAD, BENGLAURU-560001.

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… RESPONDENTS

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(BY SRI. SRI. YASHAVANTH SAJJAN GOUDAR, ADVOCATE FOR R1; SRI. K.S. NAGARAJA RAO, ADVOCATE FOR R2; SRI. T. SURYANARAYANA, SENIOR COUNSEL FOR SMT. SMITHA R.B. AND TEJASWINI ADVOCATES FOR R5; R3 AND R4 SERVED AND UNREPRESENTED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.01.2020 PASSED IN O.S.NO.2126/2012 ON THE FILE OF THE VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING SUIT OF PLAINTIFF/ APPELLANT FOR PARTITION BY ENTITLING THE PLAINTIFF/APPELLANT FOR ¼ SHARE ONLY IN RESPECT OF ITEM NO.6 TO 8 PROPERTIES AND DISMISSING THE CLAIM AGAINST ITEM NO.1 TO 5 OF THE SUIT SCHEDULE PROPERTIES.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18/07/2024 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, C M JOSHI J., PRONOUNCED THE FOLLOWING:

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RFA NO. 1064/2020

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CORAM: HON’BLE MR. JUSTICE V KAMESWAR RAO and HON’BLE MR. JUSTICE C M JOSHI

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CAV JUDGMENT

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(PER: HON’BLE MR. JUSTICE C M JOSHI)

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Being aggrieved by the judgment in

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O.S.No.2126/2012 passed by the learned VII Additional

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City Civil and Sessions Judge, (CCH No.19), Bengaluru (for short ‘the Trial Court’) dated 23.01.2020, whereby the prayer of the plaintiff having been rejected in respect of item Nos.1 to 5 of the suit schedule properties and granting share only in item Nos.6 to 8 properties, the plaintiff is before this Court in appeal.

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The factual matrix that is necessary for this appeal are as below;

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The plaintiff/appellant and defendant Nos.1 to 3 are the daughter and sons of one Theresamma and Anthonappa @ Anthappa. It is the case of the plaintiff that her father Anthonappa had two properties i.e., item Nos.2 and 4 and he sold those two properties under the sale deed dated 27.05.1962 in favour of his wife-Theresamma

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and it was a nominal sale deed. Thereafter, during lifetime, her father Anthonappa had purchased item Nos.1 and 5 of the suit schedule properties in the name of his wife Theresamma from one Gokula D/o. Chaluwaraj Shetty in the year 1962 out of the joint family funds.

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It was contended that after death of Anthonappa, defendant Nos.1 to 3 colluded with their mother and got executed alleged Will in favour of defendant No.4 in respect of item Nos.1, 2, 4 and 5 of suit properties, though she was not having any right to execute the said Will; and therefore, the said Will is not binding on the plaintiff. After death of plaintiff’s mother, defendant Nos.1 and 2 have got mutated some of the properties into their names without the knowledge of the plaintiff and some of the properties continued to be in the name of their mother. Therefore, the plaintiff demanded the defendant Nos.1 and 2 to effect a partition of the joint family properties. but they did not come forward and several efforts to have a partition failed. Therefore, the plaintiff issued a legal notice and the defendants did not

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come forward for partition and therefore, learning that defendant Nos.1 and 2 are making efforts to sell the suit schedule properties, was constrained to file the suit for relief of partition.

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Defendant Nos.1, 2 and 4 appeared before the Trial Court and resisted the suit. However, defendant No.3, the sister of the plaintiff remained absent and was placed ex-parte.

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Defendant No.1 admitted the relationship but denied that the plaintiff and other defendants were enjoying the suit schedule properties jointly. He contended that the plaintiff was married on 23.06.1993 and subsequent to the marriage she started living separately and there was no such joint family as alleged by the plaintiff. It was contended that even prior to the death of Theresamma all the properties were transferred in the name of defendant Nos.1 and 2 and nothing was in the name of Theresamma at the time of her death. It is contended that the partition had taken place much earlier

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and plaintiff has not approached the Court with clean hands and has suppressed true facts.

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Defendant No.2 has also reiterated the

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contentions of defendant No.1. In addition, he further contended that the land bearing Sy.Nos.40/1, 40/2, 40/4 and 40/5 situated at Rachenhalli village were belonging to the mother of the plaintiff and defendants and she was in possession and enjoyment of the same during her lifetime. She has executed a Will in favour of defendant No.4, who is son of defendant No.2 and therefore, defendant No.4 is

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enjoying the said properties as absolute owner under the registered Will of Theresamma dated 20.08.1999. It was contended that there is no concept of the joint family among the plaintiff and defendants since they are Christians and the plaintiff and defendant No.3 are the married sisters of defendant Nos.1 and 2 and they are living separately with their husbands for more than two decades and therefore, the contention of the plaintiff is not tenable under the law.

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Defendant No.4 has also reiterated that

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Theresamma had executed a Will in his favour and therefore, the claim of the plaintiff is not sustainable in law.

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On the basis of the above pleadings, the Trial

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Court framed the following;

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ISSUES

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1. Whether the plaintiff proves that herself and defendant were living together upto Dec.2002?

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2. Whether plaintiff is entitled for ¼ share in the schedule properties?

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3. Whether the plaintiff is entitled for possession of her share?

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4. Whether plaintiff proves the mesne profits?

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5. Whether the defendant No.4 proves that the schedule properties are not joint family properties and there is no concept of joint family among the plaintiff and defendants?

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6. Whether the defendants prove the court fee paid is insufficient?

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7. Whether the plaintiff is entitled for the relief sought?

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8. What order or decree?

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ADDL.ISSUE FRAMED ON 5.11.2019

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1. Whether the plaintiff proves that the Will dt:20.08.1999 alleged to have executed by her mother Smt.Theresamma in favour of 4th defendant in respect of item No.1, 2, 4, 5 of plaint schedule property is not binding plaintiff’s share?

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The plaintiff was examined as PW.1 and Ex.P1 to Ex.P35 were marked. On behalf of the defendants, defendant No.2 was examined as DW.1 and Ex.D1 to Ex.D5 were marked in evidence. Defendant No.4 was examined as DW.2 and defendant No.1 was examined as DW.3 and Ex.D6 to Ex.D15 were marked.

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After hearing the arguments, the Trial Court

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answered the issue Nos.1, 4 and 6 in the negative and issue Nos.2 and 7 partly in the affirmative, issue No.3 in the affirmative, and proceeded to decree the suit only in respect of the item Nos.6 to 8 properties and granted 1/4^th share to the plaintiff. The Trial Court upheld the Will dated

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20.08.1999 executed by Theresamma in favour of

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defendant No.4. Being aggrieved by the said judgment, the plaintiff is in appeal before this Court.

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On issuance of notice, respondent Nos.1 and 2 appeared before this Court, but respondent Nos.3 and 4 have not appeared, despite service of notice. During pendency of this appeal, respondent No.5, being purchaser of a property bequeathed to defendant No.4, who was not a party before the Trial Court was impleaded by the appellant.

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The Trial Court records have been secured and we have heard the arguments advanced by Sri Narsimha Murthy, learned counsel appearing for the appellant; Sri Yashwant Sajjan Goudar, learned counsel appearing for respondent No.1; Sri K. S. Nagaraja Rao, learned counsel appearing for respondent No.2 and Sri T.Suryanarayana, learned Senior Counsel on behalf of Smt. Smitha R.B. and Smt. Tejaswini , appearing for respondent No.5.

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The learned counsel for the appellant has contended that the Trial Court has failed to appreciate that the Will set up by defendant No.4 has found its existence

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on suspicious circumstances. It is pointed out that the father of the beneficiary i.e. defendant No.4 had accompanied the testatrix-Theresamma to the office of the Sub-Registrar and therefore, there is an active participation by defendant No.2 in creation of the said Will. It is submitted that DW1, the attesting witness, has not stated that he had read the contents of the Will. Moreover, DW3 is none else than the uncle of defendant No.4, the beneficiary. It is submitted that the attestation is not supported by a clause to be mentioned in the Will that the witnesses to the Will were present when the testatrix had executed the Will and in each other’s presence the signatures were affixed on the said Will. Therefore, it is submitted that the essential requirements of Section 68 and Section 63 of the Indian Evidence Act are not complied with and therefore, the conclusion reached by the Trial Court that the Will has been proved suffers from serious infirmities.

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The Will at Ex.D.3 is dated 20.08.1999 and the testatrix had died on 25.08.2002. Therefore, it is

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contended that the appreciation of the Will by the Trial Court is not proper and correct. Regarding item No.3 of the suit schedule, it is submitted that the acquisition by the BDA is not established. It is submitted that even though the item No.3 property had been acquired by the BDA, it could not have been left out of the partition. If there was an acquisition, the plaintiff was entitled for the proportionate share in the compensation amount that was awarded by the BDA on account of such acquisition. Therefore, it is contended that the reasoning of the Trial Court is not proper. It is submitted that the said property was de-notified and the BDA, in categorical terms, has stated that the said property was deleted from acquisition. Therefore, on this count also, the Trial Court erred in holding that item No.3 of the suit schedule is not available for partition.

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It is further contended that during pendency of this appeal, respondent No.5 has purchased item No.1, 4 and 5 of the suit property from defendant No.4 and the said transaction is evidently hit by the principles of

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lis pendens and therefore, the said transaction is not binding on the plaintiff. The learned counsel for the appellant has also placed reliance on the judgment in the case of Adivekka and others v. Hanamavva Kom Venkatesh (deceased by LRs) and another¹ regarding burden of proof and as to what constitutes suspicious circumstance in proving a Will. He also placed reliance on judgment in the case of Mahesh Kumar (D) by LRs v. Vinod Kumar and others² which also is concerning the Will.

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Per contra , learned counsel appearing for

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respondent No.1 submits that the parties belong to Christian community, as such are governed by the Indian Succession Act. Therefore, the concept of joint family is not available for the plaintiff to contend. It is submitted that the property which was purchased by the deceasedTheresamma is her self-acquired property. Even the property bearing Survey No.39/2A was purchased by the mother of the plaintiff and defendant No.1 and 2 from one

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1 AIR 2007 SC 2025

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2 2012 (4) SCC 387

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Theresamma W/o. Mariyappa. Therefore, it is contended that the Will, when proved, would result in devolution of item No.1, 2, 4 and 5 of the suit schedule property in favour of the defendant No.4. The plaintiff cannot contend that the properties were purchased in the name of Theresamma by her father and therefore, it is the joint family property. The concept of a joint family being alien to Christians, the claim of the plaintiff cannot be considered.

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Per contra , learned Senior Counsel for respondent No.5 submits that he has purchased the properties at item No.1, 4 and 5 from the defendant No.4 and therefore, the rights of respondent No.5 would be subject to the rights of defendant No.4 under whom he has acquired title. He has pointed out that the plaintiff do not deny the Will but says that it is not binding on the plaintiff as stated in paragraph 4A of the plaint and therefore, such a negative prayer could not have been prayed by him.

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Learned Senior Counsel appearing for

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respondent No.5 has placed reliance on the judgment in the case of Kavita Kanwar v. Pamela Mehta and others³ wherein by relying on the judgment in the case of Shivakumar v. Sharanabasappa⁴ , the Hon’ble Apex Court has reiterated the principles governing the adjudicatory process concerning proof of a Will.

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In the light of the above submissions made, the

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points that would arise for our consideration are:

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i) Whether the Will of Theresamma is proved in respect of item No.1, 2 4 and 5 properties?

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ii) Whether the item No.3 of the suit schedule is available for partition? If not, whether the plaintiff is entitled for share in it?

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Re. Point No.1:

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In order to prove the Will at Ex.D3, defendant No.4 has mainly relied upon the testimony of DW3. The deposition of DW3, who is none else than Bernard i.e.,

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3 2020 SCC OnLine SC 464 (Civil Appeal No.3688/2017)

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4 Civil Appeal No.6076/2009

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defendant No.1 shows that his mother-Theresamma had asked him to take her to Sub-Registrar’s office and accordingly he accompanied her. He states that she was selling the land but in fact she did not sell and she had executed a Will. He has volunteered to say that Theresamma had told him about the Will and he had not seen the details of survey numbers at the time of the said Will. He states that he did not go through the said Will and he denies the suggestion that he and his younger brother had forcibly taken Theresamma to the Sub-Registrar’s office and forced her to execute the Will in favour of defendant No.4.

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It is pertinent to note that there is no such evidence from the DW3, which would show that he had played a dominant role when he accompanied Theresamma to the Sub-Registrar’s office. The testimony of DW3 does not depict that he had taken an active role in the execution of the Will at Ex.D3. The cross-examination does not show any suspicious circumstance in execution of the said Will. It is relevant to note that the DW3 is

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categorical in saying that he was present at the time of the execution of the Will by his mother-Theresamma. The testimony of DW2-Kiran Balaraj, who happens to be the son of DW1, shows that he was aged 14 years when the Will was executed. Therefore, the question of DW2 influencing his grandmother-Theresamma appears to be remote and there is nothing in the cross-examination which would show that the DW2 was capable of influencing the decisions that could be taken by Theresamma.

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The testimony of the DW1, who happens to be the father of the DW2-beneficiary would indicate that his mother had informed him that she had an intention to execute the Will but he denies that he had compelled her to execute the Will. He also admits that he and his brother-DW3 were present at the time of the execution of the Will by Theresamma. There is nothing elicited in the cross-examination of DW1 that he compelled or influenced his mother-Theresamma to execute the Will as per Ex.D3.

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The proof in respect of the Will, which speaks from the death of a person, is dealt by the Apex Court in a

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catena of judgments. The judgment of the Hon’ble Apex Court in the case of Kavita Kanwar’s case (supra) wherein several decisions of the Hon’ble Apex Court; including the celebrated judgment in the case of H. Venkatachala Iyengar v. B.N.Thimmajamma and

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others⁵ (which is relied in more than 150 other judgments by the Apex Court); reiterates the principles which were laid down in the case of Shivakumar V.

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Sharanabasappa , as below:

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“24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Shivakumar v. Sharanabasappa [(2021) 11 SCC 277] , this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows

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“12. … 12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.

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5 AIR 1959 SC 443

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12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

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12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

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12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

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12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even

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in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

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12.6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.

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12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or

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suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

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12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

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12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.”

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It is worth to note that a Division Bench of this Court in the case of J.T. Surappa v. Satchidhanandendra Saraswathi Swamiji Public

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Charitable Trust⁶ h as culled out the path in the enquiry to be conducted with regard to Will, which consists of Panchapadi . It was held by this Court in paragraph 24 of the above judgment as below:

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6 ILR 2008 KAR 2115

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“24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps “PANCHAPADI”. The path of enquiry and steps to be traversed are as under:—

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(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?

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(2) Whether the natural heirs have been disinherited? If so, what is the reason?

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(3) Whether the testator was in a sound state of mind at the time of executing the Will?

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(4) Whether any suspicious circumstances exist surrounding the execution of the Will?

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(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?”

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25. Applying the above tests to the case on hand,

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we find that the Will bears the signature or mark of the testator and is duly attested by two witnesses and one of the attesting witnesses, who is none else than the son of the testatrix is examined as DW3. The Will do not totally disinherit the natural heirs but it bequeaths three of the properties in favour of her grandson-Kiran Balaraj i.e. DW2. The testator was of a sound mind at the time of executing the Will and nothing is brought either in the

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evidence of the PW1 or in the cross-examination of DWs. 1 to 3 which would indicate that Theresamma was incapable of executing a Will. There are no such suspicious circumstances which are brought out in the course of enquiry concerning the said Will. The Will is produced at Ex.D3 and it is a registered document.

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The only contention that was raised before us during the arguments by the learned counsel appearing for the appellant is that the provisions of Section 63 of the Indian Succession Act, regarding attestation, are not complied with. It is the submission of the learned counsel for the appellant that the Will do not bear an endorsement that the testatrix had signed the Will in the presence of two attesting witnesses and that the attesting witnesses had signed it in her presence. The learned counsel would submit that the endorsement which was displayed by him in the Court is not found in the said Will and therefore, the Will cannot be accepted.

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It is relevant to note that Section 63 of the Indian Succession Act does not lay down that the

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attestation is to be done in a specific format. What it states is that the attestation has to be made. The meaning of attestation is again dealt with elaborately in the case of

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J.T.Surappa (supra), which reads as below.

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“29. The last and FIFTH STEP is to consider whether the Will that is executed is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The will is a document required by law to be attested. The execution of will must include both execution and attestation. “Attestation” and “execution” are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail. In case of documents, which are compulsorily attestable, execution means some thing more than mere signing. It includes delivery and signing in the presence of witnesses or on personal acknowledgment of execution by executant. It includes the whole series of acts of formalities which are necessary to give the document validity.

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30. Section 63 of the Act deals with execution of unprivileged Wills. It prescribes three rules which have to be satisfied before the Court can declare that the Will is duly executed. Evidence should be adduced to show that the testator has signed or affixed his mark to the Will. The said signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing and lastly the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to

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the Will or has received from the testator a personal acknowledgement of his signature or mark and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Therefore, the Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affix his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that both of them should be present at the same time.”

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It is evident from the bare reading of Section 63 of the Indian Succession Act that there need not be an endorsement in the Will that the witnesses were present

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and they had signed the same in the mutual presence of the testator as well as the witnesses. If there is evidence to that effect on record, that would suffice. On perusal of the evidence of DW1 and DW3, it would indicate that DW3 was asked to accompany Theresamma to the Sub-Registrar’s office stating that she wants to sell her

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property. But however, she intended to execute a Will. Thus the testimony of DW3 does not show that Theresamma had not indicated that she is intending to execute the Will. But on going to the sub-Registrar’s office, she indicated that she is executing a Will. Therefore, there is nothing in the cross-examination of DW3 which would indicate that the DW3 did not sign the Will immediately after Theresamma signed it. Under these circumstances, we are unable to accept the argument canvassed by the learned counsel appearing for the appellant that the requirement of Section 63 of the Indian Succession Act is not complied. Thus, we hold that defendant No.4 has proved due execution of the Will by Theresamma.

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A perusal of Ex.D3 would indicate that Survey

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No.40/4 measuring 3 guntas, Survey No.40/2 measuring 24 guntas and Survey No.40/1 measuring 22 guntas of Rachenahalli were subject matter of the Will. It is pertinent to note that the above three properties which

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are item No.1, 4 and 5 of the suit schedule were subject matter of the Will.

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It is not in dispute that Theresamma died on 25.08.2002. The Will was executed on 20.08.1999. The testatrix lived for about three years after execution of the Will and it is not the case of either of the parties that she was not in disposable state of mind. It is not suggested to the DW1 to DW3 that Theresamma was incapable of taking any decisions in respect of her properties. It is also pertinent to note that the cross-examination by the plaintiff does not show that Theresamma was suffering from any disease or illness, which could impair her capability to execute the Will as per her desire.

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The Trial Court in its judgment, has considered these aspects at paragraph 14 in following words.

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“Though plaintiff asserts that, it is a Will made by the compulsion of 2^nd defendant in favour of his son 4^th defendant taking advantage of her mother's ill-health, plaintiff has not produced any documents nor examined one Sri Jacob, an advocate who according to the plaintiff prepared the said Will as suggested in the crossexamination of DW.1 on 05.10.2018. Nowhere in the

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plaint, plaintiff has mentioned about the circumstances, which makes the said Will either not reliable or not bind the plaintiff. Admittedly the sale deeds pertaining to Item No.1, 2, 4 and 5 of the suit schedule properties in respect of which Smt. Theresamma has executed the Will, which is a registered document were standing in her name. The Will in question is a registered document of the year 1999. To show that plaintiff's mother was neither having any intention nor she was in a sound mind to execute the said Will, plaintiff has not produced any piece of paper.”

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Obviously, the Trial Court was considering the Additional Issue No.1 which had saddled the burden on the plaintiff to prove that the Will is not binding on her. We do not find any reason to interfere with the same. Consequently, Point No.1 raised above is answered in the affirmative. It is needless to say that though Issue No.1 is couched in negative words, that does not result in any misdirect approach in appreciating the evidence by the Trial Court.

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Re.Point No.2:

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Learned counsel appearing for the appellantplaintiff submits that the Trial Court has excluded the item No.3 of the schedule property i.e. Survey No.39/2A

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measuring 1 acre 10 guntas on the ground that it was acquired by the government under the notification dated 21.02.2004. He points out that subsequently in the year 2006, the Government has de-notified the said property and the Ex.P29 clearly shows that the said property was excluded from acquisition. Therefore, he submits that the exclusion of Survey No.39/2A is not justifiable.

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Per contra , learned counsel respondents has submitted that item No.3 of the suit schedule was acquired by the Government and therefore the Trial Court is justified in excluding the same from partition. The revenue records pertaining to Survey No.39/2A are at Ex.P21. It shows that the total extent of the land is 1 acre 22 guntas and a portion of the property measuring 10 guntas, 5 guntas and 20 guntas is standing in the name of Theresamma and an area measuring 15 guntas is standing in the name of Bernard i.e. defendant No.1. It is relevant to note that Ex.D6 is a sale deed dated 14.03.2000. Under

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this sale deed, Theresamma w/o. Mariyappa and her children Maridas, Hrudayaraju and Anthoni had executed a

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sale deed in favour of the defendant No.1 in respect of 15 guntas of land in Survey No.39/2A. Therefore, it is evident that the property measuring 15 guntas is not in the ownership of Theresamma. In another words, a conjoint reading of Ex.D6 and the revenue records produced at Ex.P21 would indicate that Theresamma was the owner to the extent of 35 guntas only. Therefore, the land held by Theresamma in Survey No.39/2A of Rachenahalli was only to the extent of 35 guntas. Evidently this portion of the property would devolve upon her legal heirs under the provisions of the Indian Succession Act, unless it is acquired by the Government.

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A perusal of Ex.P29 shows that it is an

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endorsement dated 23.10.2013 issued by the land acquisition officer attached to the BDA depicting deletion of 1 acre 22 guntas in Survey No.39/2A from the acquisition proceedings, pursuant to the order of this Court in Writ Appeal No.2624/2005 dated 25.11.2005. Therefore, it is evident that the Survey No.39/2A was deleted from the acquisition proceedings and as such the

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property owned by Theresamma to the extent of 35 Guntas in the said survey number is available for partition.

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Even if the said portion of the property held by Theresamma was acquired by the Government, obviously, the legal heirs of Theresamma are entitled for the division in the compensation that would be awarded in respect of the acquisition of the said property. Evidently, the Trial Court erred in excluding this property from the perview of the partition. Therefore, the Survey No.39/2A has to be included in the partition. Accordingly, Point No.2 is answered in the affirmative.

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Conclusions:

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It is pertinent to note that item No.2 of the suit

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schedule i.e. Survey No.40/5 measuring 2 guntas was standing in the name of Theresamma. Perusal of Ex.P1 and Ex.P2, which are the sale deeds and also Ex.P7, 8 and 20 which are the records of rights of the said property would disclose that it was purchased by and standing in the name of Theresamma D/o. Chinnaswameppa. Not only this Survey No.40/5 the other properties, i.e. Survey

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Nos.40/4, 40/1, 40/2, were also standing in the name of Theresamma D/o. Chinnaswameppa . Therefore, there cannot be any dispute that this property is also amenable for partition. It appears from the record of rights that the name of defendant No.2 was entered on the basis of mutation entry, which cannot be countenanced.

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In view of the discussions made supra, item No.1, 4 and 5 are to be excluded from the partition on the ground that they were subject matter of the Will executed by Theresamma in favour of defendant No.4 and remaining properties are available for partition as per section 37 of Indian Succession Act. As a consequence of the above discussion, the impugned judgment deserves to be modified accordingly. Hence, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The plaintiff is entitled for 1/4^th share in respect of item No.2 (2 guntas), item No.3 (to the extent of 35 guntas only) and item No.6 to 8 properties.

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iii) Her claim in respect of item No.1, 4 and 5 properties is hereby dismissed. iv) Draw modified preliminary decree accordingly.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(C M JOSHI) JUDGE

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YAN, SMM