Dismissed

B Cheluvaraju v. Smt Savitramma

Karnataka HC26 Nov 2024RFA/202/2015

Case brief

AI extract

What is this about?

The High Court dismissed the appeal regarding a partition suit. The court held the subsequent suit was not barred by res judicata or Order XXI Rule 1(4) CPC since the first suit was dismissed for non-prosecution without adjudication. The Will was upheld as valid based on attesting witness evidence.

What did the court decide?

The Regular First Appeal was dismissed and the judgment and decree dated 13.10.2014 were confirmed.

B Cheluvaraju Vs Smt Savitramma — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:48323 RFA No. 202 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO.202 OF 2015 (PAR)

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BETWEEN:

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B.CHELUVARAJU, S/O LATE C. BETTASWAMYGOWDA, AGED ABOUT 48 YEARS,

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SINCE DECEASED BY LR’S

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1(a). SMT. HEMAVATHI. C W/O LATE B. CHELUVARAJU, AGED ABOUT 50 YEARS,

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1(b). SMT. KAVYA.C W/O SRI SHREYAS. D.M. D/O LATE SRI. B. CHELUVRAJU, AGED ABOUT 30 YEARS,

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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1(c). SMT. ANKITHA KIRAN RAJU, W/O SRI. RANJITH.S D/O LATE SRI. B. CHELUVRAJU.

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ALL ARE RESIDING AT NO. 1370, II FLOOR, 6^TH MAIN, 12^TH CROSS, WEST OF CHORD ROAD, MAHALAKSHMI PURAM, BANGALORE – 560086 AMENDED AS PER COURT ORDER DATED 28.11.2022 …APPELLANTS (BY SRI. R.B. SADASIVAPPA ADVOCATE FOR LRS OF DECEASED APPELLANT)

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AND:

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SMT.SAVITRAMMA W/O LATE C. BETTASWAMYGOWDA AGED ABOUT 64 YEARS

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B MURALIDHAR S/O LATE C. BETTASWAMY GOWDA AGED ABOUT 46 YEARS

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MASTER RAJEEV S/O B MURALIDHAR AGED ABOUT 21 YEARS,

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BABY GIRL LAKSHMI, D/O B MURALIDHAR SINCE MINOR REPRESENTED BY HER FATHER AND NATURAL GUARDIAN B MURALIDHAR RESPONDENTS 1 TO 4 ARE RESIDING AT NO.43/1 6^TH CROSS, 7^TH MAIN MALLESHWARAM BANGALORE – 560 003

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…RESPONDENTS (BY SRI. RAJESH MAHALE SR. COUNSEL FOR SRI. DAYANAND S. PATIL FOR R2 AND GPA HOLDER TO R3 AND R4)

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THIS RFA FILED U/S. 96 READ WITH ORDER 41 RULE (1) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.10.2014 PASSED IN OS NO.6099/2006 ON THE FILE OF THE 25th ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PARTITION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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CAV JUDGMENT

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This Regular First Appeal is filed by the appellant - plaintiff challenging the judgment and decree dated 13.10.2014 passed in O.S.No.6099/2006 by XXV Additional City Civil and Sessions Judge, (CCH-23), Bengaluru City (hereinafter referred to as ‘the Trial Court’), thereby, the suit filed by the appellant - plaintiff for declaration, partition and consequential relief of mense profit is dismissed.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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BRIEF FACTS OF THE CASE ARE:

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PLAINT:

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The appellant - plaintiff has filed the suit for declaration that the appellant - plaintiff is entitled for 1/3^rd share, partition and consequential relief of possession of the

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house property bearing No.43/1, 6^th Cross, 7^th Main, Malleshwaram, Bengaluru (suit property). The appellant - plaintiff is the eldest son of late C. Bettaswamygowda, defendant No.1 is the wife and defendant No.2 is the son of late C. Bettaswamygowda and defendant Nos.3 and 4 are children of defendant No.2. It is stated that C. Bettaswamygowda was the Kartha of joint family and he is the son of late Cheluvaiah of Mahadevapura Village, Kasaba Hobli, Nelamangala Taluk. After death of said Cheluvaiah, his two sons namely C. Bettaswamygowda and B. Narasimaiah have succeeded to the estate. The said C. Bettaswamygowda, after his marriage shifted to Bengaluru and was working in a factory. On 12.07.1975, C. Bettaswamygowda and his brother B. Narasimaiah jointly sold the agricultural land bearing Sy.No.20 of Mahadevapura Village, KasabaHobli, Nelamangala Taluk, Bengaluru, vide registered sale deed dated 12.07.1975 for valuable sale consideration of Rs.3,000/-. Thereafter, the said C. Bettaswamygowda, out of the funds received by selling the said property at Mahadevapura Village, purchased the suit schedule property through registered sale deed dated

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09.03.1979. Thereafter, C. Bettaswamygowda and his family members have been residing jointly in the suit schedule property, thereafter with the help of one Bettaiah, who is father-in-law of the said C. Bettaswamygowda and father of defendant No.1, the suit house property was constructed.

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It is stated that C. Bettaswamygowda was suffering from Chronic Blood Pressure and was working in a private factory and all his earning was sufficient for his personal and medical expenses and he was not in a position to save fund. The said C. Bettaswamygowda being Kartha of the jointly family sold the agricultural and non-agricultural properties of Joint Hindu Undivided Family, and out of the said funds, purchased the suit schedule property. Therefore, the suit property is joint family property of the appellant - plaintiff, defendant No.2 and C. Bettaswamygowda. The said C. Bettaswamygowda died on 10.07.1994 and at the time of death of C. Bettaswamygowda, all the family members were jointly residing together.

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It is submitted that the appellant - plaintiff has married a woman of another caste namely Hemavathi.

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Therefore, due to such inter-caste marriage of the appellant – plaintiff, there was misunderstanding between his father late C. Bettaswamygowda and the appellant - plaintiff. It is stated that C. Bettaswamygowda died due to illness on 10.07.1994. It is stated that six months prior to death of C. Bettaswamygowda, he was not in a position to attend his personal work and fully depending on others and also was not in a sound state of mind and was not in a position to understand the things.

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After death of C. Bettaswamygowda, the appellant - plaintiff requested defendant Nos.1 and 2 for equitable partition in the suit schedule property, but defendant No.2 was postponing to give share in the suit schedule property and also defendant No.2 told that C. Bettaswamygowda has executed a registered Will in favour of defendant Nos.2 and 3. Therefore, defendant Nos.2 and 3 have denied share in the property. Therefore, the appellant - plaintiff has filed the suit in O.S.No.639/1996 for partition, separate possession and for declaration that the Will executed by C. Bettaswamygowda in favour of respondents (defendant Nos.2 and 3) is not binding on the appellant -plaintiff.

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During pendency of the said suit, there was settlement talks among the appellant - plaintiff and respondents (defendant Nos.1 and 2). Therefore, the appellant - plaintiff did not show any interest in prosecuting the said suit and informed his advocate to conduct the case and subsequently, the said suit in O.S.No.639/1996 came to be dismissed for non-prosecution on 06.07.1998. It is pleaded that C. Bettaswamygowda was living with defendant No.2, and his father was suffering from ill-health and also his mental soundness was not correct. Hence, the Will stated to have been executed by C. Bettaswamygowda was actually not executed. But defendant No.2 has created the Will illegally to knock off the entire suit property. Therefore, it is submitted

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that the Will is not binding on the appellant –plaintiff, as it was obtained by playing fraud and misrepresentation. Further, stated that defendant No.2 has pledged the suit schedule property in Janatha Co-operative Bank and taken loan and consequently constructed second floor on the suit schedule property. It is pleaded that he is entitled for declaration to declare that the appellant - plaintiff is entitled for 1/3^rd share in the suit schedule property being

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coparcener. Hence, filed the suit for declaration, partition and mense profit.

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WRITTEN STATEMENT:

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Defendant No.1 has appeared through his advocate, but has not filed the written statement. Defendant Nos.2, 3 and 4 have appeared through advocate and filed their written statement denying the plaint averments that the appellant - plaintiff and defendants constituted Hindu Undivided Family and the suit property is joint family property. It is the defence of the respondents - defendants that the suit schedule property is not joint family property, but it is selfacquired property of C. Bettaswamygowda. Defendant Nos.2, 3 and 4 have denied that the land bearing Sy.No.20 of Mahadevapura Village, Nelamangala Taluk was sold for total sale consideration amount of Rs.3,000/- and the said fund was utilized by the appellant – plaintiff for the purpose of purchasing the suit schedule property. Thus, respondents - defendants have not admitted the plaint averments of the appellant - plaintiff.

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It is pleaded that C. Bettaswamygowda was healthy

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and was working in Bharat Electronics Limited, Bengaluru, and out of his earning and savings in the salary had purchased the suit schedule property. Therefore, the suit property is self-acquired property of C. Bettaswamygowda. It is further submitted that the said C. Bettaswamygowda had executed a registered Will dated 03.03.1994 at that time he was healthy and was having mental soundness and accordingly executed the registered Will. It is denied that the appellant - plaintiff has solemnized an inter-caste woman. Therefore, the said C. Bettaswamygowda, has misunderstood the appellant –plaintiff, the said C. Bettaswamygowda and respondent No.1 -defendant No.1 have become unhappy regarding inter-caste marriage of the appellant - plaintiff.

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There was no settlement talks, when the appellant - plaintiff has filed earlier suit in O.S.No.639/1996. Therefore, it is case of the respondents - defendants that C. Bettaswamygowda had executed the Will dated 03.03.1994 in favour of defendant Nos.2 and 3 on his own Will and wish and at the time of execution of Will the said C. Bettaswamygowda was healthy and having mental soundness and since the suit

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schedule property is self-acquired property of him, hence, bequeathed the said suit schedule property to defendant Nos.2 and 3 through registered Will. Therefore, denied the case of appellant - plaintiff that the suit schedule property is joint family property.

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It is pleaded that C. Bettaswamygowda was working in Bharat Electronics Limited, Bengaluru having joined the service on 03.09.1966 and purchased the suit schedule property on 09.03.1979 for valuable sale consideration amount of Rs.32,000/- from his own income and savings, but not by selling the agricultural land in Sy.No.20 of Mahadevapura Village. Further, submitted that C. Bettaswamygowda has also acquired other properties in Bengaluru prior to 1975 from out of his earnings and savings. Therefore, the said C. Bettaswamygowda was financially viable person and during his last time was living along with these respondents – defendants. Therefore, out of natural love and affection C. Bettaswamygowda had executed the Will bequeathing the suit schedule property in their favour.

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It is further pleaded that the earlier suit was filed in O.S.No.639/1996, and for the same relief the present suit is not maintainable as it is hit by res-judicata and also barred by limitation. Since, the earlier suit in O.S.No.639/1996 was dismissed for non-prosecution hence, for the same cause of action and for the same suit property and for the relief claimed between the same parties the present suit is not maintainable. Therefore, with all these pleadings in the written statement prayed to dismiss the suit.

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Upon hearing the rival pleadings of the parties, the Trial Court has framed the following issues:

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i. Whether the plaintiff proves that the suit schedule property is the joint family property of plaintiff and defendant Nos.1 and 2 which is left by deceased C. Bettawamigowda?

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ii. Whether the plaintiff proves that the Will dated 03.03.1994 executed by late Bettaswamigowda in favour of the defendants is not binding on him?

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iii. Whether the plaintiff proves that he is having a right of 1/3^rd share in the suit schedule property?

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iv. Whether the plaintiff is entitled for a decree of partition of his 1/3^rd share in respect of the suit schedule property by metes and bounds?

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v. Whether the plaintiff is entitled for mesne profits as prayed for?

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vi. Whether the suit filed by the plaintiff is hit by the principles of res-judicata?

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vii. Whether the suit claim is barred by limitation?

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viii. Whether the suit is bad for non-joinder of necessary parties as alleged in para 9 of the written statement?

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ix. Whether the plaintiff is entitled for a decree as prayed for?

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x. What order or decree?

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The appellant -plaintiff to prove his case, he was examined himself as PW-1 and also examined other three witnesses as PW-2 to PW-4 and got marked 10 documentary evidence as Ex.P-1 to Ex.P-10. On the other hand, defendant No.2 is examined as DW-1 and got marked 7 documentary evidences as Ex.D-1 to Ex.D-7.

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REASONINGS OF TRIAL COURT:

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The Trial Court has dismissed the suit on the reasons that the appellant - plaintiff has not produced evidence to show that C. Bettaswamygowda and his brother B. Narasimhaiah have sold agricultural land bearing Sy.No.20 of Mahadevapura Village, Nelamangala Taluk, and out of the

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sale proceeds the suit property is purchased. Further assigned reason that the said C. Bettaswamygowda was working in Bharat Electronics Limited, Bengaluru, and out of his salary savings he had purchased the suit property in the year 1979, therefore, the suit property is self-acquired property of C. Bettaswamygowda.

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Further assigned reason that, since the said C. Bettaswamygowda was working in Bharat Electronics Limited, Bengaluru, and out of his salary and savings, he had purchased property in Malleshwaram Pipeline Area, Bengaluru, prior to sale of agricultural land in Sy.No.20 of Mahadevapura Village. Therefore, C. Bettaswamygowda had acquired the suit schedule property out of his own earnings. Hence, suit property is not joint family property. Further, the Trial Court has assigned reason that C. Bettaswamygowda has executed the registered Will dated 03.03.1994 and bequeathed property to defendant Nos.1 and 2 and wife of defendant No.2 for maintenance of life time and thereafter, defendant Nos.3 and 4 would become owner of the property out of his own Will and wish of C. Bettaswamygowda and is proved by the attesting witness PW-2, who is sister of C.

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Bettaswamygowda. Therefore, PW-2 has also put her signature as attesting witness to the said Will and in her evidence it is proved that C. Bettaswamygowda had executed the Will. Accordingly, execution of Will is proved. Therefore, it is held that, though, defendant No.2 had not examined witness on his behalf, but the execution of Will is proved by PW-2 who is also attesting witness. Hence, came to the conclusion that C. Bettaswamygowda had executed the Will. Further, the Trial Court has assigned reasons that at the time of execution of Will C. Bettaswamygowda was mentally fit and he was knowing worldly affairs and it is proved that out of his own volition, will and wish he has executed the Will as it is self-acquired property of the deceased C. Bettaswamygowda. Therefore, it is the reason of the Trial Court that, though, the appellant - plaintiff is the member of joint family, but suit schedule property is not joint family property hence, the suit property is self-acquired property of C. Bettaswamygowda. Therefore, rejected the contention taken by the appellant - plaintiff. Thus, dismissed the suit.

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GROUNDS RAISED IN THE APPEAL:

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Being aggrieved by dismissal of the suit, the appellant - plaintiff has preferred the present appeal by raising the following grounds:

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a. Just because the appellant – plaintiff had married an inter-caste women and was living separately, that cannot severe the coparcernership of the appellant – plaintiff, since the suit schedule property is joint family property having purchased the same by selling the agricultural land in Sy.No.20 of Mahadevapura Village.

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b. The said C. Bettaswamygowda and his brother B. Narasimhaiyya sold agricultural land bearing Sy.No.20 of Mahadevapura Village and out of the sale proceeds by receiving half of the amount has purchased the suit property therefore, the suit property is joint family property. This was not rightly considered by the Trial Court resulting into passing of erroneous judgment and decree.

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c. Further, raised the ground that the defendant has not examined attesting witness therefore, the execution of Will is not proved. The defendant without examining attesting witness on his behalf cannot take benefit of the witness examined by

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the plaintiff therefore, execution of Will is not proved.

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d. Further, the ground that Trial Court has not considered the evidence of PW-2 that defendant No.2, who is claiming to be propounder of the Will was very much present in the Sub-Registrar Office at the time of registration of Will hence, it is proved that defendant No.2 had played dominant role over C. Bettaswamygowda in getting Will registered. Hence, the Will is under suspicious circumstances. But this was not considered by the Trial Court.

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e. The Trial Court has also failed to frame proper issues putting burden on the defendants to prove the Will, when it is the case of defendant Nos.2, 3 and 4 that the Will was executed; therefore, the alleged Will is not proved to have been executed validly. Since the suit property is joint family property hence, C. Bettaswamygowda ought not to have executed the Will bequeathing the property in favour of defendant Nos.2, 3 and 4 therefore, execution of Will is not binding on the plaintiff.

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Therefore, with all the above said grounds raised,

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the appellant - plaintiff has preferred the present appeal and

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prays to set aside the judgment and decree passed by the Trial Court.

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Heard the arguments of both the learned counsels appearing for the respective parties and perused the materials placed on record.

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SUBMISSIONS OF COUNSEL FOR THE APPELLANT/

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PLAINTIFF:

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Learned counsel for the appellant – plaintiff submitted that the suit property is joint family property as C. Bettaswamygowda and his brother B. Narasimhayya had their ancestral property in Mahadevapura Village of land bearing Sy.No.20 and subsequently, it was sold out in the year 1975 for sale consideration of Rs.3,000/- and C. Bettaswamygowda received Rs.1,500/-. Subsequently, in the year 1979, C. Bettaswamygowda had purchased the suit schedule property by using the said amount therefore, the suit property is joint family property. Further submitted that C. Bettaswamygowda was receiving meager salary and even that was not sufficient for livelihood and basic necessities to maintain the family. Therefore, there was no contribution from his earning to purchase suit property or make development on it.

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Therefore, it is proved that out of sale of ancestral property of Sy.No.20 of Mahadevapura Village, the said property is purchased. Hence, the suit property is joint family property. Therefore, the appellant - plaintiff is entitled for 1/3^rd share in the joint family being member of joint family and being coparcener of C. Bettaswamygowda. The family of C. Bettaswamygowda, plaintiff and defendant Nos.1 and 2 constituted the joint family. Thus, the appellant - plaintiff is entitled for 1/3^rd share in the suit property.

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Further submitted that C. Bettaswamygowda was suffering from blood pressure, cancer and other ailments. Hence, prior to death, he was bedridden for six months and fully dependent on others for his day to day activities and he was not mentally fit and hence, he has not executed any registered Will. Consequently, the claim made by defendant No.2 being propounder of the Will is not correct, since C. Bettaswamygowda had not executed the Will. Further submitted that the defendants have not examined any other attesting witness to prove the Will as mandated under Section 68 of the Indian Evidence Act, 1872 and Section 63 of the

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Indian Succession Act, 1925. Therefore, non-examination of the attesting witness belies execution of Will.

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Further, submitted that PW-2 has been examined on behalf of the plaintiff and she has stated that she does not know for what purpose she went to Sub Registrar Office and she does not know execution of Will by C. Bettaswamygowda. Thus, when this being the evidence by PW-2 and at the same time, the defendants have not examined any other attesting witness. Therefore, execution of Will is not proved, but the Trial Court has misconstrued that PW-2 is the attesting witness and through her evidence execution of Will is proved. Therefore, submitted that this approach of the Trial Court is perverse and illegal.

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Further submitted that the earlier suit in O.S.No.639/1996 was dismissed for non-prosecution, but subsequently the present suit filed is not hit by res-judicata as the earlier suit was not decided on merits. Therefore, resjudicata is not applicable in the present case. Further, the suit filed by the plaintiff is not barred by limitation. Therefore, submitted that Order XXIII Rule 1 (3) of CPC, is

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not applicable. Further, C. Bettaswamygowda was semiconscious at the end of his life at the time of execution of Will but this is not properly assessed by the Trial Court. Hence, on erroneous reasons, the suit filed by the plaintiff is dismissed. Therefore, prays to allow the appeal and set aside the judgment and decree passed by the Trial Court.

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Learned counsel for the appellant – plaintiff

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has relied on the judgments of Hon’ble Supreme Court as follows:

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a. H. VENKATACHALA IYENGAR VS. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443.

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b. MOTURU NALINI KANTH VS. GAINEDI KALIPRASAD (DEAD BY LRS) reported in 2024 (1) KAR. L.R 98 (SC).

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c. MURTHY AND OTHERS VS. C. SARADAMBAL AND OTHERS reported in AIR 2022 SC 167.

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SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS/ DEFENDANTS:

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On the other hand, learned counsel for the respondents – defendants submitted that the challenge to a Will is barred by law as execution of Will is admitted and also, by the evidence of PW-2, the execution of Will is proved. The

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plaintiff has taken contention at Para No.7 in the plaint that the Will executed by C. Bettaswamygowda in favour of respondent Nos.2 and 3 is not binding on the appellant – plaintiff, which proves the fact that the appellant - plaintiff has admitted execution of Will.

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Further submitted that the appellant - plaintiff has filed earlier suit in O.S.No.639/1996 for partition and separate possession and the said suit was dismissed for nonprosecution on 06.07.1998 as the appellant - plaintiff has abandoned to prosecute the suit. Therefore, as per Order XXIII Rule 1 (4) of CPC, the appellant – plaintiff is precluded from instituting fresh suit in respect of subject matter of the suit without seeking permission from the Court. Hence, submitted that when the appellant – plaintiff has abandoned to prosecute the suit, then fresh suit filed in O.S.No.6099/2006 is not maintainable. It is submitted that abandonment and not showing interest to prosecute the suit are having same meaning for which, he referred the LAW LEXICON DICTIONARY authored by P. RAMANATHA AIYAR, showing the meaning of abandonment. The pleadings at Para No.8 and at prayer column (a) and (b) in

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O.S.No.639/1996 and pleadings in O.S.No.6099/2006 at Para No.12 and prayer at column (a) and (b) are one and the same. Therefore, as per Order XXIII Rule 1 (4) of CPC filing of fresh suit in O.S.No.6099/2006 is barred by law.

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Further submitted that challenge to Will is barred as per Article 58 of the Limitation Act. The earlier suit in O.S.No.639/1996 was dismissed on 06.07.1998 and the fresh suit in O.S.No.6099/2006 is filed on 10.07.2006 after eight years. Therefore, the challenge to Will is time barred. Further, submitted that the suit in O.S.No.6099/2006 is hit by res-judicata, but the Trial Court has erroneously held that the suit is not hit by res-judicata.

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Further submitted that there is no evidence that C. Bettaswamygowda and his brother B. Narasimhaiah have sold the agricultural land bearing Sy.No.20 of Mahadevapura Village and the sale proceeds were utilized for purchasing the suit schedule property. Although, the appellant - plaintiff has pleaded in the plaint, but has not adduced any evidence in this regard. Therefore, the suit

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property is not joint family property, but self-acquired property of C. Bettaswamygowda.

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Further submitted that C. Bettaswamygowda had joined service at Bharat Electronics Limited, Bengaluru, on 03.09.1966 and out of his savings in the salary, he has purchased the suit property for sale consideration of Rs.32,000/- on 09.03.1979. Therefore, from the date of joining of service after thirteen years, said C. Bettaswamygowda has purchased the suit property out of his income and savings. Hence, submitted that, if C. Bettaswamygowda purchased the suit schedule property soon after selling the land bearing Sy.No.20 of Mahadevapura Village, immediately he could have purchased the suit schedule property, then in such an event, it could be said that the suit schedule property is joint family property. But the time gap between selling of agricultural land bearing Sy.No.20 in the year 1974 and purchasing the suit schedule property on 09.03.1979 itself proves the fact that C. Bettaswamygowda has not utilized the sale proceeds of selling the land bearing Sy.No.20 for purchasing the suit

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schedule property. Therefore, the suit schedule property is self-acquired property of C. Bettaswamygowda.

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Further submitted that the admissions in cross-examination of the plaintiff – PW-1 itself proved the fact that the suit schedule property is self-acquired property as C. Bettaswamygowda was financially fit person to purchase the suit schedule property. Hence, there was also no nucleus of fund of joint family property to purchase the suit schedule property.

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In the first suit in O.S.No.639/1996, there is no pleading regarding ill health of C. Bettaswamygowda and not able to execute the Will. But in the present suit in O.S.No.6099/2006, for the first time, the appellant - plaintiff has taken such contention. Therefore, this is improvement in the second plaint, hence, the claim made by the appellant - plaintiff is false one. PW-4 is the Doctor examined by the appellant - plaintiff regarding proving mental condition of C. Bettaswamygowda and it is answered by PW-4 – Doctor that even if, C. Bettaswamygowda was suffering from ill health and mental status of him is impaired, but the answer given

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by PW-4 – Doctor is not necessarily the mental condition is affected. Therefore, regarding mental condition of C. Bettaswamygowda what the appellant - plaintiff has pleaded in his plaint is not proved. Therefore, C. Bettaswamygowda though was suffering from ill health, but did not affect his mental condition to execute the Will. Therefore, the Will executed by C. Bettaswamygowda is valid one.

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Further argued that during the course of cross-examination of PW-2, who is the sister of deceased C. Bettaswamygowda that execution of Will is proved, therefore, submitted that the suit schedule property is self-acquired property of the deceased C. Bettaswamygowda and he has executed the Will, which is proved as valid one. Therefore, the Trial Court is correct in passing the judgment and decree. Hence, prays to dismiss the appeal.

¶149

POINTS FOR CONSIDERATION RAISED IN THE APPEAL:

¶150

Upon hearing the rival arguments, pleadings and perusal of records of the parties, the following points that arise for my consideration:

¶151

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a) Whether, under the facts and circumstances involved in the case, the suit filed by the plaintiff in O.S.No.6099/2006 is hit by res-judicata in view of dismissal of the suit in O.S.No.639/1996 for non-prosecution?

¶154

b) Whether, under the facts and circumstances involved in the case, the suit filed in O.S.No.6099/2006 is hit by Order XXIII Rule 1 (4) of CPC?

¶155

c) Whether, under the facts and circumstances involved in the case, the plaintiff proves that the suit schedule property is joint family property of plaintiff, defendant Nos.1 and 2, and is entitled for 1/3^rd share in the suit schedule property?

¶156

d) Whether, under the facts and circumstances involved in the case, the defendants prove that the suit schedule property is self-acquired property of deceased C. Bettaswamygowda?

¶157

e) Whether, under the facts and circumstances involved in the case, the defendants proves that C. Bettaswamygowda has executed the registered Will deed dated 03.03.1994 in favour of defendant Nos.2, 3 and 4?

¶158

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REASONS

¶161

Point Nos.(a) and (b)

¶162

Point Nos.(a) and (b) are taken up together for common consideration to avoid repetition of facts:

¶163

The plaintiff has filed suit in O.S.No.639/1996 for partition, separate possession and to declare that the Will deed dated 03.03.1994 is null and void and is not binding on the plaintiff. The said suit was in respect of the very same subject matter involved in the present case and between the same parties. As per the appellant - plaintiff there were settlement talks among the plaintiff and defendant Nos.1 and 2. Therefore, the appellant - plaintiff did not show any interest in prosecuting the suit. Hence, subsequently the suit filed by the appellant - plaintiff is dismissed for nonprosecution on 06.07.1998. Thereafter, the plaintiff has filed the suit in O.S.No.6099/2006 against the defendants, who are the same defendants in O.S.No.639/1996 and the subject matter of the suit schedule property is the same involved in the first suit. Though, the subsequent suit in O.S.No.6099/2006 is between the same parties, involving

¶164

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same subject matter of the property, but the earlier suit in O.S.No.639/1996 was dismissed for non-prosecution without there being any adjudication. Therefore, the earlier suit was not adjudicated and decided on merits substantially. The relief claimed in both the suits are for partition and separate possession. Under these circumstances, when the previous suit was not decided substantially and the first suit was dismissed for non-prosecution, hence, principle of resjudicata is not applicable. Therefore, the present suit is very well maintainable. Hence, the Trial Court is correct and justified on this aspect.

¶167

It is another contention taken by the respondents- defendant Nos.2, 3 and 4 that the appellant - plaintiff has not shown interest to prosecute the suit itself is abandonment of the suit. Therefore, submitted the subsequent suit filed is hit by Order XXIII Rule 1 (4) of CPC. Therefore, it is contended that the earlier suit is dismissed for non-prosecution that is amounting to abandonment of claim by the appellant - plaintiff. Order XXIII Rule 1 (4) enunciates two things one is “abandon” and another one is “withdraws”. In the LAW LEXICON DICTIONARY authored

¶168

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by P. RAMANTHA AIYAR, the meaning of the words

¶171

“abandon” and “abandonment” is stated are as follows:

¶172

“ Abandon . To give up; to leave without help; to surrender control or possession, frequently with the knowledge that the thing abandoned is left for the mercy of someone or something else.” [S. 68 (2), T.P. Act.].

¶173

“Abandonment. Abandonment means the giving up of a thing; the external act by which the intention is carried into effect. "Abandonment is the relinquishment of a right, the giving up of something to which one is entitled." Per WHEELE, C.J., in Dikes v. Miller, 24 Tex. 417.

¶174

‘Abandonment' means the act of intentionally relinquishing a known right absolutely and unconditionally and without reference to any particular person or persons. When the expression 'abandonment’ is used in relation to property, it signifies the complete relinquishment of title, possession or claim, virtually indicating that the property is being thrown away. Abandonment is not equivalent to inaction.

¶175

INTENTION IN ABANDONMENT. In

¶176

determining whether one has abandoned his property the intention is the first and paramount object of inquiry. There can be no abandonment without the intention to abandon. Thus, property sunk in a steamboat and unclaimed for twentythree years is derelict. Creevy v. Breed Love, 12 La.Ann.745. Manure which had accumulated in a frequented place in a public street was raked into heaps by plaintiff, in the evening and left in that condition to be carried away by him the next

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evening. During the afternoon of the next day, the defendant, finding the manure in heaps, loaded it into his cart and carried it away. In an action brought by the plaintiff for the value of the manure, it was held that it belonged originally to the owners of the animals that dropped it, but was to be regarded as abandoned by them, and, that, being abandoned property, plaintiff, the first occupant, who took it, had a right to appropriate it. (Haslem v. Lockwool, 9 Am. Rep. 350). Such an intention to abandon may be inferred from lapse of time or nonuser though they are not conclusive. The inference of an abandonment of a right from non-user is not applicable to the case of mines. Seaman v. Vawdrey, 16 Ves. 392=10 R.R. 207.

¶180

"Abandonment" as applied to absentee landlords in Punjab means an "Intentional quitting of possession by the proprietor coupled with an intention not to resume it." Sam Ditta v. Bhulanan, 85 PR 1892 (FB). See also Surya Jah v. Azim, 5 IC 888=17 PWR 1910=29 PR 1910.

¶181

Under the Hindu Law, the word

¶182

“abandonment” means the inactivity or the passive attitude of a person has never in law been interpreted as an act of abandonment. Abandonment is a positive act. A man must expressly say that he gives up his right. If he remains quiet it cannot be said that he is forsaking his title to property or his interest in any other manner.

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Learned counsel for the defendants places reliance on the judgment of Hon’ble Supreme Court in the case of SARBUJA TRANSPORT SERVICE VS. STATE OF APPELLATE TRIBUNAL reported in 1987 (1) SCC 5 wherein at paragraph Nos.6 and 7 observed as follows:

¶186

“6. It may be noted that while in sub-rule (1) of the former Rule 1 of Order XXIII of the Code the words “withdraw his suit” had been used in sub-rule (1) of the new Rule 1 of Order XXIII of the Code, the words “abandon his suit” are used. The new sub-rule (1) is applicable to a case where the court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that subrule the court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new Rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the court might award and would also be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

¶187

7. The Code as it now stands thus makes a distinction between “abandonment” of a suit and “withdrawal” from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without

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the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur — the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first

¶191

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suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court.”

¶193

The rule of res-judicata applies to a case

¶194

where in the previous suit, the issue has already been adjudicated, heard and finally decided substantially by the Court in a previous suit. Then for the same relief between the same parties and in respect of same subject matter of the property, if subsequent suit is filed, then it amounts to resjudicata. But in the present case in O.S.No.6099/2006, the issue involved was not adjudicated and decided substantially and simply the suit in O.S.No.639/1996 was dismissed for non-prosecution therefore, there is no merit in the arguments canvassed by the counsel for the respondents – defendants that the suit in O.S.No.6099/2006 is hit by res-judicata.

¶195

The words “abandon” and “withdraws” are used in Order XXIII Rule 1 (4) of CPC which means there shall be an active mind in giving up of relief claimed in the suit. The words used “abandon” and “withdraws” means the appellant - plaintiff with his intention having animus in his mind and with all his consciousness abandon the suit or

¶196

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withdraws from a suit, then only the plaintiff is precluded from instituting fresh suit in case permission is not sought for. Therefore, the word “abandon” and “withdraws” should indicate the active part on the part of the appellant - plaintiff with all his consciousness in giving up of his claim made in the plaint. Therefore, just because, the plaintiff do not appear before the court and the suit is dismissed for nonprosecution that cannot amount to abandonment of the suit or withdrawal from the suit. In the present case, the plaintiff did not appear in the suit in O.S.No.639/1996 therefore, the Court has dismissed the suit for non-prosecution. There is a difference between the suit is dismissed for non-prosecution, abandonment and withdrawal of the suit. If the appellant - plaintiff do not appear in the suit resulting into dismissal of the suit for non-prosecution that cannot be inferred that the appellant - plaintiff has consciously given up relief claimed in the plaint. Therefore, words used as abandon or withdraws are to be considered that there has to be an active element of consciousness and application of mind on the part of the appellant -plaintiff as to whether to proceed with the case or not. Therefore, mere dismissal of suit for non-prosecution is

¶199

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not amounting to abandonment of suit or withdrawal of the suit as enshrined under Order XXIII Rule 1 (4) of CPC. Accordingly, I answer point Nos.(a) and (b) in Negative .

¶202

Point Nos.(c) to (e)

¶203

Point Nos.(c) to (e) are interlinked each other. Hence, in order to avoid repetition of facts, then they are up together for common consideration:

¶204

The appellant - plaintiff is contending that the suit property is joint family property of C. Bettaswamygowda, plaintiff and defendant No.2. The appellant - plaintiff has pleaded in the plaint that the father of C. Bettaswamygowda, was the owner of agricultural land bearing Sy.No.20 of Mahadevapura Village, which was inherited by his father. Therefore, C. Bettaswamygowda and his brother B. Narasimhaiah have inherited the said property jointly and C. Bettaswamygowda and his brother B. Narasimhaiah jointly sold the said property in Sy.No.20 through registered sale deed dated 12.07.1975 for sale consideration of Rs.3,000/and C. Bettaswamygowda has received Rs.1,500/- and by using the said amount has purchased the suit property.

¶205

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¶206

Thus, in this way, the appellant - plaintiff is claiming that the suit property is joint family property. In the suit, the appellant - plaintiff has not produced evidence that land bearing Sy.No.20 was sold out through registered sale deed. Therefore, the Trial Court held that the plaintiff failed to produce the sale deed and has not proved the sale of the land bearing Sy.No.20 and the sale proceeds is utilized for purchase of suit property. In this appeal, the appellant - plaintiff has produced additional document by invoking Order VII Rule 14 of CPC which is stated to be registered sale deed dated 12.06.1976 having sold the land bearing Sy.No.20 by C. Bettaswamygowda and his brother B. Narasimhaiah. Though, this document is to be considered and received as evidence that the land bearing Sy.No.20 was sold by C. Bettaswamygowda and his brother B. Narasimhaiah jointly for sale consideration of Rs.3,000/-, but out of the sale proceeds received to the half extent by C. Bettaswamygowda at Rs.1,500/- and by utilizing the said amount whether suit property was purchased is to be considered.

¶207

The appellant – plaintiff - PW-1, in crossexamination has admitted that C. Bettaswamygowda was

¶208

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¶210

working in Bharat Electronics Limited, Bengaluru in the year 1966 and was receiving salary of Rs.2,000/- - Rs.2,200/p.m. The appellant - plaintiff has stated that he does not remember that C. Bettaswamygowda, has purchased the property at Malleshwaram Pipeline Area on 08.11.1974. Further the appellant -plaintiff admitted that his father C. Bettaswamygowda had purchased the property at Malleshwaram Pipeline Area and he came to know when he was studying in 7^th standard. Therefore, it is proved that C. Bettaswamygowda had purchased one property at Malleshwaram Pipeline area, Bengaluru on 08.11.1974. Therefore, even before selling the land bearing Sy.No.20 of Mahadevapura Village through sale deed dated 12.06.1976, C. Bettaswamygowda had purchased the property at Malleshwaram Pipeline Area, Bengaluru, this proves the financial viability of C. Bettaswamygowda for purchasing the property. Furthermore, it is proved that C. Bettaswamygowda had joined service in the year 1966 in Bharat Electronics Limited, Bengaluru and was receiving salary of Rs.2,000/- - Rs.2,200/- p.m. Therefore, C.

¶211

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Bettaswamygowda was having financial viability to purchase the property.

¶214

Though, it is the case of the appellant - plaintiff that C. Bettaswamygowda and his brother B. Narasimhaiah have sold the agricultural land bearing Sy.No.20 of Mahadevapura Village, for sale consideration of Rs.3,000/-. Thus, it is presumed that C. Bettaswamygowda, might have received half equal amount of Rs.1,500/-. But the plaintiff has no evidence to prove that C. Bettaswamygowda had utilized this sale consideration for purchasing the suit property. It is the case of appellant - plaintiff that the salary was being received by C. Bettaswamygowda was not sufficient for maintenance of his family, therefore, there could not be surplus fund to purchase the suit property. But as discussed above on 08.11.1974, before selling the land bearing Sy.No.20 of Mahadevapura Village, C. Bettaswamygowda had purchased the suit property on 08.11.1974 at Malleshwaram Pipeline Area, Bengaluru. Therefore, this proves C. Bettaswamygowda was working in Bharat Electronics Limited, Bengaluru and was receiving salary of Rs.2,000/- - Rs.2,200/- p.m. and thus, has

¶215

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purchased the suit property at Malleshwaram Pipeline Area, Bengaluru, and also it is proved the fact that he was financially viable person to purchase the property.

¶218

According to the appellant - plaintiff, C. Bettaswamygowda had purchased the suit property through registered sale deed dated 09.03.1979 and this is after 13 years from joining service to Bharat Electronics Limited, Bengaluru. Therefore, C. Bettaswamygowda must have surplus fund by savings from his salary had purchased the suit schedule property out of his own earnings. Therefore, C. Bettaswamygowda has utilized amount of Rs.1,500/- and purchased the suit property is only presumption. Presumption is not evidence. When C. Bettaswamygowda had purchased the suit schedule property through registered sale deed dated 09.03.1975, the sale consideration amount was Rs.32,000/-. C. Bettaswamygowda had put in service of 13 years in Bharat Electronics Limited, Bengaluru, at the time of purchasing the suit schedule property in the year 1979. According to the appellant - plaintiff, C. Bettaswamygowda has received half of the sale consideration that is Rs.1,500/by selling agricultural land bearing Sy.No.20. Therefore,

¶219

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upon analyzing all these evidence on record on all its preponderance of probabilities, it is proved that the appellant - plaintiff has failed to prove that out of sale of the land in Sy.No.20 of Mahadevapura Village by utilizing the amount of Rs.1,500/-had purchased the suit schedule property. Even though the appellant - plaintiff had produced the copy of registered sale deed by invoking Order VII Rule 14 of CPC and is considered in this appeal, but from the out of sale proceeds of selling the land in Sy.No.20 of Mahadevapura Village, C. Bettaswamygowda had purchased the suit schedule property is not proved. Therefore, it is proved that the suit schedule property is self-acquired property of C. Bettaswamygowda.

¶222

The appellant – plaintiff while he was giving evidence of PW-1 in the course of cross-examination admitted that his father was working at Bharat Electronics Limited, Bengaluru, while joining to service in the year 1966. The appellant – plaintiff born on 24.09.1967 and he has admitted that his father was drawing salary of Rs.2,000/- to Rs.2,200/p.m. Further, the appellant – plaintiff admitted that his father C. Bettaswamygowda purchased the property situated

¶223

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at Malleshwaram Pipeline Area, Bengaluru, but stated that he cannot remember the date of purchase of suit property, he came to know that the suit property was purchased, when he was studying in 7^th standard. Further stated that his father has sold the said property situated at Malleshwaram Pipeline Area, Bengaluru, and he deposed that he does not remember the sale of said property but was sold in the year 1979 and further the appellant –plaintiff has admitted that he has stated these facts to his advocate while filing the suit.

¶226

Further upon considering the crossexamination of PW-1, he does not know anything about the sale of land bearing Sy.No.20 of Mahadevapura Village and what extent of money C. Bettaswamygowda has received, but from the cross-examination of PW-1 - plaintiff, it is proved that C. Bettaswamygowda had purchased the property at Malleshwaram Pipeline Area, Bengaluru, much prior to sale of land of Sy.No.20 of Mahadevapura Village, this proves the financial viability of C. Bettaswamygowda of purchasing the suit schedule property. Thus, on all its preponderance of probability, it is proved that the suit property is self acquired property of C. Bettaswamygowda. Therefore, upon

¶227

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considering and appreciating the evidence on record as discussed above, it is proved that the suit property is self acquired property of C. Bettaswamygowda.

¶230

REGARDING WILL:

¶231

It is the case of defendant No.2 that, C. Bettaswamygowda had executed the Will in favour of defendant Nos.2, 3 and 4 with the right of enjoyment by defendant No.1 during her life time. As per the defendant, C. Bettaswamygowda had executed registered Will on 03.03.1994. It is the case of appellant – plaintiff that C. Bettaswamygowda has not executed the said Will and whatever Will executed as contended by defendant Nos.2, 3 and 4 is created and concocted one for the purpose of case. When the appellant - plaintiff is disputing the execution of Will then the evidence is considered as to whether C. Bettaswamygowda had executed the Will or not.

¶232

The Hon’ble Supreme Court in the case of H.

¶233

VENKATACHALA IYENGAR Vs. B. N. THIMMAJAMMA

¶234

AND OTHERS reported in AIR 1959 SC 443 was pleased to lay down the law at paragraph Nos.18, 19, 20 and 21 as follows:

¶235

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"18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provision. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, As in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

¶238

19. However, there is one important feature which distinguishes wills from other documents.

¶239

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Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

¶242

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental

¶243

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capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally except that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

¶246

21. Apart from the suspicious circumstances above referre to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that

¶247

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decisions of English courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.”

¶249

Further, the Hon’ble Supreme Court in the case of JAGADISH CHAND SHARMA Vs. NARAIN SINGH

¶250

SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2015) 8 SCC 615 , at paragraph Nos.21 and 22 observed as follows:

¶251

"21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of

¶252

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the witnesses has signed the will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.

¶255

22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.

¶256

22.1. In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.

¶257

22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the

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person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence."

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Therefore, the propounder of Will has to prove execution as per legal compliance under Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 by examining at least one attesting witness. The role of the attesting witness is to state whether the testator had executed the Will or not, and if no attesting witness is examined, then it cannot be said that the Will is proved having been executed. The legal requirement is to examine at least one attesting witness and on whose side, the attesting witness is examined is immaterial. The Court is required to consider the proof of execution of Will rather than on whose side the attesting witness is examined. In this legal background as enunciated by the Hon’ble Supreme Court the evidence in the present case is to be appreciated.

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The word "Will" is defined under Section 2(h)

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of The Indian Succession Act, 1925 which reads as follows :

¶265

Section 2(h) in The Indian Succession Act, 1925.

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"Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. (emphasis supplied by me).

¶267

Therefore, Will is legal declaration of the intention of the testator to bequeath his property to the propounder to be carried into effect after his death. Therefore, it is also a burden on the propounder to prove that the testator had intention to bequeath property by placing circumstantial evidence.

¶268

Learned counsel for the appellant – plaintiff submitted that defendant No.2 has not examined attesting witness on his behalf to prove the Will, but PW-2, who is sister of C. Bettaswaygowda being attesting witness to the Will is examined by the appellant – plaintiff himself. It is an attempt made by the appellant – plaintiff himself by examining PW-2 namely B. Radha that C. Bettaswamygowda has not executed the Will. However, upon considering the evidence of PW-2, it is proved that C. Bettaswamygowda had

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executed the Will, though PW-2 had stated that she does not know the contents of Will and was suffering from ill health. Upon appreciating the evidence of PW-2, it is proved that C. Bettaswamygowda went to Sub-Registrar Office and tendered the Will and registered it. Though registration or unregistration does not make any impact on proving the Will, but from the evidence of PW-2, it is proved that C. Bettaswamygowda went to Sub-Registrar Office on 03.03.1994. It is the evidence of PW-2 that at that time C. Bettaswamygowda was not in the position to sign or capable

¶272

of understanding anything during that point of time, but the evidence of PW-4 – Doctor, stated that due to sufferings and ill-health, the mental status of C. Bettaswamygowda is not affected. PW-4 is the Doctor, who was working in Malya Hospital, Bengaluru wherein, C. Bettaswamygowda was admitted.

¶273

It is evidence of PW-4 that on 09.07.1994, C. Bettaswamygowda has admitted to the Malya Hospital, Bengaluru and he died on 10.07.1994. The alleged Will was executed on 03.03.1994 and at that time the C. Bettaswamygowda was not in the hospital. From the

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evidence of PW-4, it is proved that C. Bettaswamygowda was 47 years old, C. Bettaswamygowda was suffering from Pulmonary Hyper tension, Blood Pressure. But as per the evidence of Doctor – PW-4, the specific question posed to him whatever the diseases are suffered by C. Bettaswamygowda has not affected his mental condition. PW-2 is younger sister of defendant No.1, it means C. Bettaswamygowda is brother in law of PW-2. PW-2 has stated that on 03.03.1994 she went to Sub Registrar Office along with defendant No.2 and C. Bettaswamygowda. PW-2 had stated that she signed the documents in the Sub Registrar Office, but she has stated that the contents of which are not known to her. During the course of cross-examination, PW-2 has stated that one Advocate by name C. S. Kumar, drafted and presented Ex.D1 - Will for registration and other two witnesses were present apart from C. S. Kumar, Advocate before the Sub Registrar office and they have also signed the Will – Ex.D-1.

¶277

PW-2 has admitted that the signature in Ex.D1 is identified as it is of C. Bettaswamygowda therefore, from the evidence of PW-2, it is proved that the C. Bettaswamygowda had put signature on Ex.D-1 – Will. PW-2

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is also attesting witness has also put signature on Ex.D-1 and also the thumb impression of C. Bettaswamygowda was taken on Ex.D-1 – Will. PW-2 had stated that defendant No.2 was also present in the Sub Registrar Office. Just because, defendant No.2 was present before the Sub-Registrar office that cannot be said that he actually participated in the process of making Will. Quite naturally, defendant No.2 being son of C. Bettaswamygowda, at the age of 47, was suffering from Blood Pressure, Hyper Tension and other related diseases accompanied. Quite naturally, defendant No.2 being son might have taken C. Bettaswamygowda to the Sub Registrar office. C. Bettaswamygowda has only two children namely plaintiff and defendant No.2. The appellant – plaintiff was residing separately from C. Bettaswamygowda. But C. Bettaswamygowda was residing along with defendant No.2 therefore, quite naturally C. Bettaswamygowda was dependent on defendant No.2 and when C. Bettaswamygowda was accompanied by defendant No.2, in these circumstances, it cannot be said that defendant No.2 has actively participated in making the process of execution of Will. Therefore, it is proved that C. Bettaswamygowda had

¶281

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executed the Will in the Sub-Registrar office and it is attested by PW-2, who is none other than his sister in law. Therefore, in this regard when the appellant – plaintiff himself had examined PW-2 and she has admitted that she has put signature on Ex.D-1 – Will, then there was no necessity for the defendant for examining other attesting witness. The appellant – plaintiff - PW-1 admitted in the cross-examination that he knew that his father has executed the Will on 03.03.1994. Therefore, when from the evidence of PW-2 execution of Will is proved as she is attesting witness and therefore, the legal requirement of proving of Will by examining attesting witness as per Section 68 of the Indian Evidence Act, 1872 and as per Section 63 of the Indian Succession Act, 1925 is proved.

¶284

Just because, defendant No.2 had not examined attesting witness on his behalf that cannot be the ground to say that the execution of Will is not proved, because PW-2 is being attesting witness has deposed regarding execution of Will as discussed above. Therefore,

¶285

due to difference in factual matrix involved in the citations relied on by the learned counsel for the appellant – plaintiff

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with the facts, circumstances and evidence in the present case, the above cited judgments relied on by the appellant are not helpful in aiding the appellant – plaintiff. In order to prove the Will, it is not the matter on whose side the attesting witness is examined, either on behalf of the appellant – plaintiff or on behalf of the respondents - defendants. Here, the appellant - plaintiff himself has called upon PW-2 and from the evidence of PW-2, it is proved the process of execution of Will. Therefore, just because, defendant No.2 had not examined other attesting witnesses cannot disprove the Will.

¶289

When the appellant – plaintiff has filed suit in O.S.No.639/1996, there is no averment in the said plaint regarding ill-health sufferings by C. Bettaswamygowda and was not able to execute the Will. But for the first time in the second suit in O.S.No.6099/2006, the appellant – plaintiff has taken this contention. Therefore, this is the improvement by the appellant – plaintiff in the second case regarding execution of Will. In the first suit in O.S.No.639/1996, in the plaint, the prayer made by the appellant – plaintiff was to declare the alleged Will dated 03.03.1994 as null and void

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and is not binding on the appellant – plaintiff. Therefore, in the first suit in O.S.No.639/1996, the appellant – plaintiff has challenged the Will, but has not taken the contention that C. Bettaswamygowda was suffering from ill health and was not capable to execute the Will. Though, the appellant – plaintiff has pleaded in O.S.No.639/1996 regarding execution of Will by fraud, misrepresentation, etc., but has not taken any contention that C. Bettaswamygowda was suffering from ill health and his mental status was affected and was not able to execute the Will. Therefore, this is the improvement made by the appellant – plaintiff in second suit in O.S.No.6099/2006 and also from the evidence of PW-4 – Doctor, it is proved that C. Bettaswamygowda was suffering from Blood Pressure, Hyper Tension and Stroke was happened and not necessarily affected the mental status. Therefore, upon considering all the evidence on record and on all its preponderance of probabilities, it is proved that C. Bettaswamygowda had executed the Will dated 03.03.1994. Accordingly, I answer point No.(c) in the Negative , point Nos.(d) and (e) in the Affirmative.

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Therefore, for the aforesaid reasons, it is proved that the suit schedule property is not joint family property, but it is self-acquired property of C. Bettaswamygowda and he has executed a Will by bequeathing property in favour of defendant Nos.2, 3 and 4. Therefore, dismissal of the suit of appellant – plaintiff by the Trial Court is justifiable one and correct and there is no perversity in appreciating evidence on record. Hence, the appeal is liable to be dismissed.

¶295

Hence, I proceed to pass the following:

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ORDER

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i. The Regular First Appeal is dismissed .

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ii. The judgment and decree dated 13.10.2014 passed in O.S.No.6099/2006 by the XXV Additional City Civil and Sessions Judge, (CCH-23), Bengaluru, is hereby confirmed.

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iii. Draw decree accordingly.

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iv. No order as to costs.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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SRA

B Cheluvaraju v. Smt Savitramma

Case brief

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B Cheluvaraju v. Smt Savitramma

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