Smt. Suvarnamma Vs Smt. Parvathamma

THE EXECUTIVE ENGINEER BANGALORE ELECTRICITY SUPPLY COMPANY LTD., OFFICE OF THE EXECUTIVE ENGINEER (E1) AND CO & M, JNR DIVISION BESCOM, 23RD MAIN ROAD, 27TH CROSS BENGALURU - 560 070.

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SMT. PUSHPALATHA D/O. LATE SRINIVAS @ SEENAPPA AGED ABOUT 40 YEARS

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SRIKANTH @ KANTHARAJ S/O. LATE SRINIVAS @ SEENAPPA AGED ABOUT 42 YEARS

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R3 AND R4 ARE R/AT AJJEGOWDANA HALLI MARALAVADI HOBLI, KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 121.

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THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA HOUSING BOARD CAUVERY BHAVAN, K.G. ROAD BENGALURU - 560 009.

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…RESPONDENTS

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(BY SRI. M.D.BASAVANNA, ADVOCATE FOR C/R1, R3 & R4; SRI. H.V.DEVARAJU, ADVOCATE FOR R2; SRI. D.BOREGOWDA, ADVOCATE FOR R5)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 26.09.2024 PASSED IN OS.NO.2750/2020 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR PROBATE ORDER RELATED TO THE WILL.

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NC: 2025:KHC:30362 RFA No. 19 of 2025

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THIS APPEAL, COMING ON FOR DICTATING ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiffs namely second wife and son of late Seenappa feeling aggrieved by the judgment and decree rendered in O.S.No.2750/2020, wherein the Court below has dismissed the suit by holding that the plaintiffs have failed to substantiate that the testator has made a testamentary arrangement in respect of terminal benefits. The said judgment is under challenge.

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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The facts leading to the case are as under:

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One Seenappa had two wives. Plaintiff No.1 has

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admitted in the plaint that she is the second wife of the

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said Seenappa. It is specifically pleaded that Seenappa was employed as a driver with respondent No.2 (BESCOM). The plaintiffs further assert that during the course of his employment, Seenappa made a declaration nominating plaintiff No.1 as the nominee in the service records maintained by respondent No.2.

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The plaintiffs also contend that a registered Will dated 06.11.2012 was executed by Seenappa and a petition seeking probate was filed before the competent Court. Relying on the said Will, the plaintiffs claim entitlement to the terminal benefits, including arrears of salary, provident fund, insurance, and other servicerelated benefits. Despite issuance of a legal notice dated 08.01.2013 addressed to respondent No.2 seeking release of these benefits, no response was received. Consequently, the present suit has been instituted.

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Upon service of summons, defendant Nos.1, 3 and 4 entered appearance and filed a detailed written

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statement contesting the claim. Defendant No.1

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specifically denied that Seenappa had nominated plaintiff No.1 in the service records and also disputed the validity and execution of the alleged Will. She further asserted that she is the lawfully wedded wife, their marriage having been solemnized on 22.04.1981, and that defendant Nos.3 and 4 were born out of the said wedlock.

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Defendant No.2 (BESCOM), in its written statement, admitted that plaintiff No.1 was recorded as the nominee of the deceased employee Seenappa. However, it was stated that in view of the dispute among the claimants, the employer refrained from disbursing the amounts due or proceeding with any appointment under compassionate grounds, pending adjudication of the rights of the legal heirs.

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To substantiate their claim, the plaintiffs relied upon

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the registered Will marked as Ex.P-5 and examined plaintiff No.1 as PW.1. The contesting

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defendants did not lead any evidence. The trial Court, however, while considering Issue No.1 regarding proof of Will, answered the same in the negative, holding that the plaintiffs had failed to comply with the statutory requirements under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Accordingly, the suit was dismissed. This judgment is now under challenge in the present appeal.

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Heard learned counsel for the plaintiffs and learned counsel for the defendants. The following points arise for consideration in the appeal:

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1. Whether the finding of the trial Court on Issue No.1 suffers from perversity and warrants interference by this Court?

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2. Whether plaintiff No.1, though admittedly the second wife, is entitled to claim terminal benefits based on nomination, notwithstanding the adverse finding on Issue No.1?

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Finding on Point No.1:

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It is a settled position of law that any legatee

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seeking to rely upon a Will is under a statutory obligation to prove its execution and attestation in accordance with the requirements prescribed under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872. This Court, in a catena of decisions, has consistently held that mere production of a registered Will is not sufficient; the legatee must discharge the burden of proving the due execution and attestation of the Will in the manner known to law.

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As per Section 63 of the Indian Succession Act,

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a Will must be attested by at least two witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or must have received from the testator a personal acknowledgment of his signature or mark. Furthermore, in terms of Section 68 of the Indian Evidence Act, if the execution of the Will is in dispute, at least one of the attesting witnesses must be examined to prove its

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execution. The statutory mandate is clear, and noncompliance with these requirements renders the Will legally untenable.

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In the present case, the plaintiffs have placed reliance on a registered Will dated 06.11.2012, which is marked as Ex.P-5, to claim entitlement to the terminal benefits of late Seenappa. However, a perusal of the trial Court record reveals that the plaintiffs have not examined either of the attesting witnesses to the Will. Plaintiff No.1, who was examined as PW.1, is neither an attesting witness nor competent to prove the attestation in the absence of compliance with Section 68 of the Indian Evidence Act.

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Further, the timing and circumstances under which the alleged Will came into existence raise serious doubts about its genuineness. During her crossexamination, PW.1 admitted that Seenappa was not in sound health at the time the Will was purportedly

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executed. She has specifically stated that Seenappa was hospitalised for nearly 20 days at Kempegowda Hospital, prior to which he was admitted to Dhobighat Hospital. It is also admitted that Seenappa eventually passed away while

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still undergoing treatment in hospital. These facts clearly establish that the testator was in poor health and under medical supervision during the relevant period, which casts a shadow on the voluntariness and mental capacity of the testator to execute a Will.

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This Court, in the case of J.T. Surappa & Another v. Satchidhananadendra Saraswathi

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Swamiji Public Charitable Trust & Others¹ , has held that the absence of examination of at least one attesting witness is fatal to the case of the propounder of the Will. Moreover, when the Will is alleged to have been executed in suspicious circumstances, such as during the testator’s

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hospitalisation or ill health, the burden on the propounder becomes heavier to dispel such suspicion through cogent

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1 ILR 2008 Kar 2115

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evidence. In the present case, no such effort has been made by the plaintiffs.

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In view of the non-compliance with the statutory requirements and the absence of credible evidence to prove the due execution and attestation of the Will, this Court is of the considered view that the Will set up by the plaintiffs cannot be legally sustained. The plaintiffs have failed to satisfy the foundational requirements under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, and consequently, the registered Will dated 06.11.2012 marked at Ex.P-5 is devoid of any legal sanctity. Accordingly, Point No.1 is answered in the Negative .

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Finding on Point No.2:

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It is not in dispute that plaintiff No.1 is the second wife of late Seenappa. The records also unequivocally demonstrate that Seenappa had submitted a formal declaration during his service, wherein plaintiff

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No.1 was named as the nominee in the service records maintained by defendant No.2 (BESCOM). In view of the controversy surrounding the entitlement of a second wife to terminal benefits and family pension, this Court directed the learned standing counsel appearing for defendant No.2 to place on record the relevant service regulations governing the disbursement of family pension.

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Pursuant to the said direction, the learned standing counsel has produced the applicable Employee Service Regulations, and this Court finds Note (7) to Regulation 221(b) to be particularly relevant and determinative of the issue at hand. For ease of reference and in order to appreciate its legal effect, the said regulation is extracted below:

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“(7) If an employee had married and having more than one wife, the family pension shall be divided among them equally. The share in respect of each wife shall be paid to her; if she is not alive, it shall be paid to her minor children in the manner indicated under relevant Regulation. When the last

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member eligible to receive such a share in respect of a wife ceases to be eligible to receive it, such share shall be divided equally among all the other members of the family eligible for family pension on that date. This process of transfer by division among the other beneficiaries shall continue till the last beneficiary of the family ceases to be eligible for family pension.”

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A plain reading of Note (7) to Regulation

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221(b) makes it abundantly clear that in cases where a deceased employee had more than one wife, both wives

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are legally entitled to a share in the family pension, and such share must be apportioned equally. The fact that Seenappa acknowledged plaintiff No.1 as his wife and had made a formal declaration nominating her in the service records lends strong support to her claim. While defendant No.1 is the lawfully wedded wife, it cannot be ignored that plaintiff No.1 was also accepted as a spouse by Seenappa during his lifetime, and her status as such was recognized in official records.

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Therefore, even though the Will set up by the plaintiffs has failed, as confirmed by both the trial Court and this Court, plaintiff No.1 nonetheless acquires an independent statutory right to claim a share in the family pension and other terminal benefits, in terms of Note (7) to Regulation 221(b) of the service regulations. This Regulation clearly envisions equal distribution of such benefits among all surviving wives. Consequently, both plaintiff No.1 and defendant No.1 are entitled to an equal share in the family pension payable on account of late Seenappa’s service.

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In addition, defendant No.2 is under a legal obligation to take note of the nomination declaration executed by Seenappa, wherein plaintiff No.1 was designated as the nominee. While nomination by itself does not confer absolute title, it does serve as a guiding basis for disbursement of amounts due until the rights of legal heirs are adjudicated. In the present case, Note (7) to Regulation 221(b) provides a clear and

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binding mechanism for apportionment of family pension, and defendant No.2 is duty-bound to act in conformity with the said Regulation. Accordingly, the family pension shall be equally divided between plaintiff No.1 and defendant No.1, as mandated under the service rules and accordingly, point No.2 is answered in the Affirmative .

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With these observations, this Court proceeds to pass the following:

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ORDER

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(i) The appeal stands dismissed as being devoid of merits, insofar as the challenge to the findings of the trial Court on the validity of the Will is concerned;

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(ii) However, it is made clear that nothing in this judgment shall preclude plaintiff No.1 from submitting a fresh representation before defendant No.2 (BESCOM) seeking disbursement of family pension and terminal benefits by placing reliance on Note (7) to Regulation 221(b) of

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the Service Regulations. It is further open to plaintiff No.1 to annex a copy of this judgment along with such representation, and defendant No.2 is directed to consider the same in accordance with law and applicable regulations, without being influenced by the rejection of the Will;

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(iii) Pending interlocutory applications, if any, do not survive for consideration and stand disposed of.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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CA

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List No.: 1 Sl No.: 53

Smt. Suvarnamma v. Smt. Parvathamma

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Smt. Suvarnamma v. Smt. Parvathamma

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