Smt Annapoornamma Vs Narayana Shetty

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DTD 16.4.2013 PASSED IN R.A.NO.91/2012 ON THE FILE OF THE DISTRICT JUDGE, FAST TRACK COURT-I, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 6.3.2012 PASSED IN O.S.NO.23/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., SORABA.

¶23

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

¶24

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶25

ORAL ORDER

¶26

This appeal arises from the divergent finding in a suit for declaration of title and injunction.

¶27

The plaintiff questioned the validity of the Will dated 15.03.2007 said to have been executed by her father Rudrappa Shetty in favour of defendants No.1 to 3.

¶28

The plaintiff claims that her father who was illiterate did not have any intention to disinherit the plaintiff

¶29

3 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶30

HC-KAR

¶31

who is the only daughter. It is her contention that the alleged Will dated 15.03.2007 said to have been executed in favour of Rudrappa Shetty’s brother’s children is not valid and it is outcome of fraud and misrepresentation.

¶32

Defendants contested the suit and initially contended that the plaintiff is not the daughter of Rudrappa Shetty and Rudrappa Shetty was unmarried and he voluntarily executed Will on 15.03.2007 and the same is duly registered and duly attested and the defendants acquired actual ownership over the properties covered under the Will.

¶33

The Trial Court rejected the defence and decreed the suit holding that the suspicious circumstances surrounding the Will are not dispelled by the propounders.

¶34

Defendants filed an appeal. First Appellate Court has set-aside the judgment and decree passed by the Trial Court and consequently dismissed the suit.

¶35

Aggrieved by the aforementioned judgment and decree, the plaintiff is before this Court.

¶36

4 -

¶37

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶38

HC-KAR

¶39

On 27.08.2014, this appeal was admitted to

¶40

answer the following substantial question of law:

¶41

"When the Trial Court decreed the suit of appellant holding that the Will (Ex.D1-original) was executed in suspicious circumstances by assigning appropriate reasons for rejection of the said Will, whether the First Appellate Court was justified in reversing the findings of Trial Court and in doing so, did not assign appropriate and valid reasons to overcome the findings of Trial Court and thereby committed an illegality in the impugned judgment and decree?"

¶42

Learned counsel appearing for the

¶43

plaintiff/appellant would submit as under:

¶44

Plaintiff is the daughter of Rudrappa Shetty and she was married and living in the neighbouring village and she was taking care of her mother and father. Mother died 1½ years prior to the death of her father and father died on 10.09.2007. Defendants No.1 to 3 who are also living with the plaintiff’s father got the alleged Will executed by practicing fraud and misrepresentation. Defendants No.1 and 2 taking undue advantage of illiteracy of plaintiff’s father

¶45

5 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶46

HC-KAR

¶47

who was unable to read and write and made a claim that the plaintiff’s father executed the Will on 15.03.2007.

¶48

Learned counsel would also urge that it is recital in the Will that the testator has no daughter is erroneous and that itself is sufficient to hold that the Will is got executed by practicing fraud to grab the property of the plaintiff's father.

¶49

Learned counsel would submit that defendants No.1 to 3 disputed the plaintiff’s status as the daughter of Rudrappa Shetty and plaintiff filed an application for DNA test and then defendants No.1 to 3 admitted that the plaintiff is the daughter of Rudrappa Shetty though they had taken a contention that Rudrappa Shetty was unmarried and had no issues.

¶50

It is urged on behalf of the plaintiff that the plaintiff’s status as daughter of Rudrappa Shetty was not seriously contested thereafter and the Trial Court noticed that the averment in the Will that Rudrappa Shetty has no issues is erroneous averment and also came to the

¶51

6 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶52

HC-KAR

¶53

conclusion that the suspicious circumstances surrounding the Will are not dispelled by the propounders.

¶54

Learned counsel would further submit that in the cross-examination, it is admitted that the contents of the Will were not read over by the Sub-Registrar when Will was presented for registration.

¶55

It is also urged on behalf of the plaintiff that Rudrappa Shetty being illiterate and the fact that the contents of the Will were not read goes to the root of the matter and the Trial Court is justified in holding that the Will is not executed by Rudrappa Shetty.

¶56

Learned counsel appearing for the plaintiff also submitted that both attesting witnesses who are residents of the same village have stated in the cross-examination that they did not know whether the plaintiff is the daughter of Rudrappa Shetty and one of the attesting witnesses went to the extent of saying that he does not know whether Rudrappa Shetty was married or not.

¶57

7 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶58

HC-KAR

¶59

Referring to these circumstances, learned counsel would submit that the attesting witnesses are not trust worthy and Trial Court is justified in ignoring the evidence of these two attesting witnesses.

¶60

Learned Counsel would also urge that Rudrappa Shetty had only one daughter and he had cordial relationship with the daughter and there was no reason why Rudrappa Shetty would disinherit his daughter by executing the Will in respect of the entire property in favour of the defendants.

¶61

Learned counsel appearing for the plaintiff would urge that without discussing the reasons assigned by the Trial Court, First Appellate Court without assigning any reasons has come to the conclusion that the Will is proved. It is his submission that merely because the attesting witnesses are examined to prove execution of the alleged Will, First Appellate Court could not have held that the Will is proved without analyzing and discussing the suspicious circumstances surrounding the Will.

¶62

8 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶63

HC-KAR

¶64

Learned Senior counsel appearing for the

¶65

defendants/respondents urge the following contentions.

¶66

The plaintiff was not residing with her father and she was married and was residing in the neighboring village and it is the defendants, who have taken care of the plaintiff's father till his death. For this reason, the testator had all the compelling reasons to execute a Will in favour of the defendants.

¶67

The Will is duly registered on 15.03.2007 and the testator died on 10.09.2007. Testator lived for more than six months after the execution of the Will, and that speaks about sound health of the testator and two attesting witnesses have been examined, though, the law requires evidence of at least one attesting witness and in addition, the scribe is examined and all the witnesses have withstood the crossexamination. The Trial Court could not have held that the Will is not proved and First Appellate Court has rightly held that the Will is duly established.

¶68

9 -

¶69

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶70

HC-KAR

¶71

Merely because, the natural heir is excluded under the Will, that itself cannot be construed as a suspicious circumstance to disbelieve the Will. The Will was read over and explained to the testator by the scribe and the testator has signed the Will voluntarily and signature on the Will is not disputed. The burden is heavy on the person, who has disputed the execution of the Will after having admitted the signature and the plaintiff has not discharged the burden cast on the plaintiff.

¶72

Learned Senior Counsel would also rely on the following judgments to substantiate his contention:

¶73

1. Madhukar D. Shande vs. Tarabai Aba Shedagi¹ .

¶74

2. Savithri and Others vs. Karthyayani Amma² .

¶75

3. P.N. Balakrishna and Others vs. H.B. Bhavni Shankar³ .

¶76

4. Smt. Subasini Choudhury vs. Smt. Visaka Kar⁴ .

¶77

5. Bahadur Singh vs. Pooran Singh⁵ .

¶78

6. Chandra Kanta Medhi vs. Lakheshwarnath⁶ .

¶79

7. V. Prabhakara vs. Basavaraj⁷ .

¶80

1 AIR 2002 SC 637

¶81

2 AIR 2008 SC 300

¶82

3 2009 SCC Online Kar 584

¶83

4 AIR 2010 Orissa 174

¶84

5 AIR 2012 Raj 74

¶85

6 AIR 1976 Gau 94

¶86

7 AIR 2021 SC 4830

¶87

10 -

¶88

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶89

HC-KAR

¶90

This Court has considered the contentions raised,

¶91

perused the records and also the judgments cited by learned Senior Counsel for the respondents/defendants.

¶92

It is relevant to notice that the Trial Court has assigned reasons to disbelieve the execution of the alleged Will dated 15.03.2007. When the suit is filed by the plaintiff claiming to be the sole daughter of Rudrappa Shetty, the defendants, who are the children of the brother of Rudrappa Shetty, filed written statement disputing the plaintiff's status as the daughter of Rudrappa Shetty.

¶93

The Will relied on by the defendants would also contain a recital that Rudrappa Shetty died issueless. Probably, this prompted the defendants to raise a contention that Rudrappa Shetty died issueless.

¶94

It is relevant to notice that defendants are not strangers to the family of Rudrappa Shetty. Defendants admittedly are the sons of Rudrappa Shetty’s brother. Thus, the defendants should have known whether Rudrappa Shetty died issueless or not.

¶95

11 -

¶96

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶97

HC-KAR

¶98

Till the plaintiff filed an application for a DNA test to establish her status as the daughter of Rudrappa Shetty, the defendants maintained that the plaintiff is not the daughter of Rudrappa Shetty. It is only thereafter, the defendants came out with a different version i.e., they admitted the plaintiff's status as the daughter of Rudrappa Shetty. This speaks a lot about the conduct of the defendants.

¶99

It is also relevant to notice that the Trial Court has recorded a reason that the Will contains an erroneous statement that testator Rudrappa Shetty is not having any issues. Now that statement is found to be false as defendants themselves admit that the plaintiff is the daughter of Rudrappa Shetty. When that is the position, the question is, how Rudrappa Shetty can execute a Will, which contains a recital that he has no issues.

¶100

The Trial Court has also examined the evidence given by the attesting witnesses. Both attesting witnesses are said to be from the same village. However, in the cross-

¶101

12 -

¶102

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶103

HC-KAR

¶104

examination, they are not ready to acknowledge that the plaintiff is the daughter of Rudrappa Shetty. Said witnesses when confronted with a specific question as to whether Rudrappa Shetty died leaving behind the daughter i.e., the plaintiff, witnesses have pleaded ignorance. The Trial Court has noticed that the alleged attesting witnesses being the residents of the same village, should have known that the plaintiff is daughter of Rudrappa Shetty.

¶105

It has also come in the cross-examination of one of the attesting witnesses, who has stated that a day after the execution of Will, he has met defendant No.1 and has informed about the execution of Will by Rudrappa Shetty. However, defendant No.1 in the cross-examination states that he came across the alleged Will on 13^th day, after the demise of the testator, when he was informed by the attesting witnesses. This is again a very glaring contradiction which speaks about the conduct of the defendants and their credibility.

¶106

13 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶107

HC-KAR

¶108

By analyzing these factors, the Trial Court has come to the conclusion that execution of Will is not established and the suspicious circumstances surrounding the Will are not dispelled by the propounders.

¶109

However, on appeal filed by the defendants, First Appellate Court has proceeded to hold that execution of the Will is established. First Appellate Court has held that the testator was possessing a sound state of disposing mind. While recording such a finding, First Appellate Court has not assigned any reasons as to how First Appellate Court has come to the conclusion that the testator was having sound state of disposing mind.

¶110

It is also relevant to notice that in the impugned judgment at paragraph No.25, First Appellate Court has proceeded to observe that “...... as on the date when Rudrappa Shetty admittedly, executed the registered Will bequeathing the property in favour of defendants No.1 to 3 under Ex.D1 dated 15.03.2007” . This finding of First Appellate Court is wholly incorrect. The entire dispute is

¶111

14 -

¶112

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶113

HC-KAR

¶114

relating to alleged execution of Will dated 15.03.2007 by Rudrappa Shetty.

¶115

It is also noticed from the judgment of First Appellate Court that the Court has proceeded to hold that the plaintiff is born before 1956, as such, plaintiff is not entitled to claim right in the property. This reasoning of First Appellate Court is also wholly erroneous. Because the plaintiff was born before 1956, plaintiff is not disqualified to inherit the property of her father.

¶116

Learned Senior Counsel appearing for the defendants/respondents would submit before First Appellate Court that the plaintiff did not address any arguments, as such, the matter requires to be remitted to First Appellate Court to consider the appellant's case afresh. This Court does not find any merit in the said submission. Merely because the appellant before this Court, who is the plaintiff/respondent before First Appellate Court did not address the argument, is not a ground to remand the matter to First Appellate Court.

¶117

15 - NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶118

HC-KAR

¶119

After analyzing the evidence placed on record,

¶120

this Court is of the view that the suspicious circumstances surrounding the alleged execution of Will dated 15.03.2007, are not explained by the propounders of the Will. The patently erroneous statement in the Will that the testator has no issues from his marriage itself creates a serious doubt as to the authenticity of the said Will. Moreover, the reason for excluding the sole natural heir i.e., the plaintiff, the daughter of Rudrappa Shetty is not explained in the pleading and the evidence.

¶121

Though learned Senior Counsel would submit that there are judgments to hold that exclusion of natural heir is not a ground to disbelieve the Will, this Court is of the view that in the facts and circumstances of this case and more particularly in view of erroneous recital in the Will, which says that the testator has no issues, creates a serious doubt about the authenticity of the Will.

¶122

16 -

¶123

NC: 2025:KHC:36877 RSA No. 1245 of 2013

¶124

HC-KAR

¶125

For the aforementioned reasons, the substantial

¶126

questions of the law framed are answered in favour of the appellant and against the respondents.

¶127

The property belonged to Rudrappa Shetty, and

¶128

this fact is not in dispute. Rudrappa Shetty died leaving behind the plaintiff as the sole heir. Under these circumstances, the plaintiff is entitled to the relief of declaration and injunction.

¶129