Sri Malpanna @ Mallappa Vs Smt Hanumakka

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 28.8.2012 PASSED IN R.A.NO.37/2008 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 29.7.2008 PASSED IN OS.NO.142/2005 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, HANNALI.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 28.08.2012 passed in R.A.No.37/2008 by the learned Senior Civil Judge, Harihar and the judgment and decree dated 29.07.2008 passed in O.S.No142/2005 by the learned Civil Judge (Jr.Dn.) and JMFC, Honnali.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.2 and the respondents were the legal representatives of the plaintiff.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition, separate possession and declaration. It is the case of the plaintiff that the plaintiff and the defendants are members of a Hindu Undivided Joint Family. One Hanumappa is the common ancestor of the plaintiff and the defendants. He had two sons named Halada Hanumappa and Lakshmappa @ Lakshmanappa. The plaintiff is the daughter of Halada Hanumappa and defendant No.1 is the wife and defendant No.2 is the son of Lakshmappa. Both Halada Hanumappa and Lakshmappa are no more. During their life time, their common ancestor, Hanumappa had purchased item No.1 of the suit schedule property out of joint family funds, in the name of defendant No.2 and at that time, defendant No.2 was the minor and common ancestor Hanumappa stood as the minor guardian to defendant No.2. Item No.1 is their ancestral property. Item No.2 in K.No.65, stands in the name of the plaintiff and K.No.66, stands in the name of defendant No.2. Both K.Nos.65 and 66 have a common

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boundary. At the instigation of some persons, defendant No.2 created a document styled as 'Will' regarding item no.1 of the suit property, and on the strength of the Will, defendant No.2 got transferred the said property in his name. It is contended that the alleged Will executed by Hanumappa in favour of defendant No.2 is null and void and not binding on the plaintiff. It is contended that defendant No.2 filed a suit for permanent injunction against the plaintiff, in O.S.No.100/2004, relating to item No.2 of the suit schedule property. The plaintiff appeared in the said suit through her counsel.

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Further, the plaintiff demanded for partition and separate possession, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file a suit for partition, separate possession and a declaration, to declare that the Will dated 04.02.1983 as null and void and not binding on the plaintiff. Accordingly, she prays to decree the suit.

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Defendant No.1 filed a written statement,

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admitting the entire plaint averments and prays to decree the suit. Defendant No.2 filed a separate OS contending that the plaintiff married long back and has been residing in Haranahalli Village and the plaintiff's father died on 09.12.1988 and her mother predeceased her father. It is contended that on 04.02.1983, Hanumappa executed a Will in his favour bequeathing the entire share in item No.1 of the suit schedule property and after his demise, defendant No.2 became the absolute owner of the said suit schedule property, by Will dated 04.02.1983. The plaintiff submitted an application for the change of Khata in her name. Defendant No.2 objected to the same and it is treated as a disputed case. It is contended that item No.2 of the suit schedule property is a self-acquired property of defendant No.2 and the plaintiff has no share in the suit schedule properties and hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the following issues:

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"(1) Whether the plaintiff proves that suit schedule properties are ancestral/joint family properties of herself and the defendants?

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(2) Whether the Plaintiff proves that she is entitled for Partition and Separate Possession of her half share over the suit schedule properties ?

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(3) Whether the plaintiff proves that the 'Will' executed by here father-Halada Hanumappa in favour of 2^nd defendant in No.SR.No.34/1982-83 is null and void and the same is not binding on her?

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(4) What order or decree?"

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The plaintiff, to substantiate her case,

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examined herself as PW.1, examined two witnesses as PW.2 and PW.3 and marked 13 documents as Exs.P1 to P13. In rebuttal, defendant No.2 examined himself as DW1, examined one witness as DW-2 and marked 23 documents as Exs.D1 to D23.

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The trial Court, after recording the evidence,

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hearing on both sides and after assessing the verbal and documentary evidence, answered issues Nos.1 to 3 in the affirmative and issue No.4 as per the final order.

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The suit of the plaintiff was decreed. It is ordered and declared that the plaintiff and defendant No.2 are entitled to a bounds 1/2 share in the suit schedule properties by metes and bounds. Defendant No.2, aggrieved by the judgment and preliminary decree passed in O.S.No.142/2005 preferred an appeal in R.A.No.37/2008 on the file of the learned Senior Civil Judge and JMFC, Harihara.

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The first appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:-

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"1. Whether the trial court is right in the hold that all the schedule properties are joint family properties of plaintiff and defendants.

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Whether the finding of trial court that the defendant No.2 has not proved the Will deed said to be executed by Halada Hanumappa calls for any interference?"

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The first appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the affirmative and point No.2 in the negative and consequently, dismissed the appeal vide judgment dated 28.08.2012 and confirmed the judgment and decree passed in O.S.No.142/2005. Defendant No.2 aggrieved by the impugned judgments passed by the Courts below, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the defendant No.2 and the plaintiff.

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Learned counsel for defendant No.2 submits that, Hanumappa had executed a will bequeathing his share in the suit schedule properties. Hanumappa died, after his demise, defendant No.2 became the absolute owner of item Numbers of suit schedule property by a will.

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He submits that the will is registered and it has a presumption with respect to its validity and he submits that the suit is barred by limitation and he also submits that the plaintiff has not challenged the will. The trial Court committed an error in declaring that the will is null and void. Further, the First Appellate Court committed an error on confirming the judgment of the trial Court. Hence, on these grounds prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the will produced by the defendants is the created document and he submits that to prove the execution of the will, defendant No.2 has not examined any attesting witnesses to the will. The defendants failed to prove the will as required under Section 68 of the Indian Evidence Act and he submits that the defendants have failed to prove the execution of a will. Hence, the question of considering the limitation, does not arise. He submits that both Courts below, have concurrently held that the suit schedule properties are the ancestral/joint

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family properties of the plaintiff and the defendants and no partition was effected between the plaintiff and defendant No.2 and rightly decreed the suit granting a half share to the plaintiff in the suit schedule properties. Hence, on these grounds, he prays to dismiss the appeal.

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This Court admitted the appeal to consider the following substantial questions of law

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i) Were the Courts below justified in decreeing the suit of the plaintiff ignoring Ex.D.16 - registered Will and Ex.P.10 mutation register in the suit filed in the year 2005 in view of the provisions of Articles 58 and 110 of the Limitation Act, 1963?

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ii) Were the Courts below justified in decreeing the suit of the plaintiff holding that the Will is void though it is not under challenge with a specific prayer to seek nullification of Ex.D.16?

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iii) Were the Courts below justified in holding that the Will is null and void because the Will is acted upon without obtaining probate?

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iv) Were the Courts below justified in decreeing the suit of the plaintiff for partition of half share in the facts and circumstances of the present case?

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Regarding substantial question Nos.1 to 4:

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Substantial question Nos.1 to 4 are interlinked

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and are discussed together to avoid the repetition of the facts.

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The plaintiff, to substantiate her case, examined herself as PW1. She has deposed that one Hanumappa was the original propositus, he had two sons named Halada Hanumappa and Lakshmappa @ Lakshmanappa. The plaintiff is the daughter of Halada Hanumappa and defendant No.1 is the wife and defendant No.2 is the son of Lakshmappa. The suit schedule properties are the ancestral properties of the plaintiff and defendant No.2. The plaintiff and the defendants are members of the Hindu Undivided Family and no partition has been effected between them by metes and bounds. The plaintiff

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demanded partition and separate possession, but the defendants refused to effect the partition.

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To prove that the suit schedule properties are

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the ancestral properties, the plaintiff, produced the documents:

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Ex.P1 is the House/Land Tax Assessment List for the year 1988-89.

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Ex.P2 is the Mutation extract

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Ex.P3 to Ex.P7 are the RTC extracts.

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Ex.P8 to Ex.P10 are the mutation Extracts

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Ex.P11 is the certified copy of the will, which discloses that Hanumappa had bequeathed item No.1 of the suit schedule property in favour of defendant No.2.

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Ex.P12 is the order of the Assistant commissioner, Sub-Division, Shimoga in No.PDA.20/89-90 Dt:11.07.1989.

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Ex.P13 is the Genealogical tree.

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During the cross examination, the defendants

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have not suggested regarding the fact that the suit

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schedule properties are the ancestral/joint family properties. It is only suggested that the Hanumappa is the original propositus, bequeathed item No.1 of the suit schedule property in favour of defendant No.2, by virtue of registered will dated 04.02.1983 marked as Ex.D16.

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The plaintiff has denied the execution of the will by Hanumappa in favour of defendant No.2. It is also suggested that the suit filed by the plaintiff is barred by limitation. The said suggestion was denied by PW1. The plaintiff has also examined two witnesses as PW2 and PW3 who have reiterated the examination in chief of PW1.

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On the other hand, defendant No.2 was examined as DW1. He has deposed that suit item No.1 of the suit schedule property was owned and possessed by Hanumappa. He bequeathed item No.1 of the suit schedule property in favour of defendant No.2 and after the demise of the original propositus, defendant No.2 became the absolute owner of item No.1 of the suit schedule property by virtue of a will dated 04.02.1983 and the defendant

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No.2 has produced the original will, which marked as Ex.D16.

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The defendants also examined one Krishnappa as DW2, who has reiterated the depositions of DW1. From the perusal of entire evidence on record, there is no dispute that the suit schedule properties were owned and possessed by the original propositus, Hanumappa, who died inter-se leaving behind his two sons as his legal representatives of i.e, Halada Hanumappa and Lakshmappa @ Lakshmanappa. The plaintiff is the daughter of Halada Hanumappa, defendant No.1 is the wife, defendant No.2 is the son of Lakshmappa @ Lakshmanappa. Admittedly, the original propositus died. Lakshmappa @ Lakshmanappa and Halada Hanumappa also died and after their demise, the plaintiff and the defendants have succeeded to the suit schedule properties.

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The defendants have taken a defence that the Hanumappa had executed the will on 04.02.1983

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bequeathing item No.1 of the suit schedule property in favour of Defendant No.2. The defendants have produced original will, marked as Ex.D16. The plaintiff has denied the execution of the will i.e., Ex.D16. The defendants to prove the execution of the will, did not examined any attesting witnesses to Ex.D16 as required under Section 68 of the Indian Evidence Act. Merely, the will is registered, is not a ground to hold that the defendants have proved the execution of the will.

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To prove the case on hand, it is necessary to examine Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 which reads as follows:-

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Section 63 of the Indian Succession Act, 1925:

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"63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—

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(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

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(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

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(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

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Section 68 of the Indian Evidence Act, 1872:

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“ 68. Proof of execution of document

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required by law to be attested.- -"If a

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document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

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Thus, a bare reading of the above mentioned provisions show that the requirement under Section 68 of the Indian Evidence Act have to be categorically complied with, for the execution of the will to be proved.

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The Hon’ble Apex Court in the case of Meena

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Pradhan vs Kamla Pradhan in Civil Appeal No.3351/2014

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disposed of on 21.09.2023 wherein the Hon’ble Apex Court

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held that:

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“9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.

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(i) The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;

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(ii) It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

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(iii) A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

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(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence

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and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;

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(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

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(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

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(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

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(iv) For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

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(v) The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator;

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(vi) If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;

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(vii) Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available

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attesting witness has to be called to supplement his evidence;"

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Admittedly, in the instant case, the defendant No.2 has not examined atleast one of the attesting witness to Ex.D16. There is no compliance of Section 68 of the Indian Evidence Act. Both Courts below have rightly held that defendant No.2 have failed to prove the execution of the will by Hanumappa in favour of defendant No.2.

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Defendant No.2, based on the will i.e., Ex.D16, got entered his name in the revenue records. The plaintiff has challenged the revenue records transferred in the name of defendant No.2. The dispute was referred to the Dispute Register. The defendants have taken a defence that the suit is barred by limitation. The will is executed on 04.02.1983 and the testator died in 1988. The plaintiff had knowledge regarding the execution of the will and has not challenged the will within 3 years from the date of the knowledge. Hence, the suit is barred by limitation as per Article 58 and Article 110 of the limitation Act.

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Admittedly, in the instant case, defendant No.2 has failed to prove the execution of the will. The point of limitation applies only in case defendant No.2 has proved the execution of a will. Admittedly, as observed above, defendant No.2 has failed to prove the execution of a will. Hence, the question of limitation will not arise. Further it is case of the defendants that the plaintiff has not challenged the will executed by deceased Hanumappa in favour of defendant No.2. From the perusal of the prayer in the plaint, the plaintiff has specifically sought for declaration that the will dated 04.02.1983 alleged to have been executed by Hanumappa in favour of defendant No.2 is null and void and not binding on the plaintiff.

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The plaintiff has challenged the will i.e., Ex.D16 by seeking a prayer for declaration i.e., the alleged will is null and void and not binding to the share of the plaintiff. Both the Courts below have rightly held that defendant No.2 has failed to prove the execution of the will, Ex.D16 and also further defendant No.2 has not acted upon

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Ex.D16 and did not obtained a probate. I do not find any

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error in the impugned judgments. Both Courts below, have rightly passed the impugned judgments. In view of the above discussions, I answer substantial question Nos.1 to 4 in the affirmative.

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Accordingly, I proceed to pass the following order:

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ORDER

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