Sri Parameshwarachar Vs Sri Mallachar

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.10.2016 PASSED IN RA NO.12/2006 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.03.2006 PASSED IN OS NO.194/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC., BHADRAVATHI.

¶19

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

¶20

CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

¶21

ORAL JUDGMENT

¶22

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 24.10.2016, passed in R.A.No.12/2006 by the learned I Additional District and Sessions Judge, Shivamogga, confirming the judgment and decree dated 29.03.2006 passed in O.S.No.194/2001 by the learned Senior Civil Judge, Senior Division and JMFC, Bhadravathi.

¶23

3 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶24

For convenience, the parties are referred to based on their rankings before the trial Court. The Appellants were the plaintiffs, and the respondent was the defendant.

¶25

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

¶26

The plaintiffs filed a suit against the defendant for the relief of declaration, to declare that the alleged Will dated 20.03.1997 is concocted, created, forged and not binding upon the plaintiffs as it is illegal, also sought for a declaration that the revenue records in MR.No.19/19981999 is null and void, illegal and not binding on the plaintiffs, and for mandatory injunction restraining the defendant from alienating the suit schedule properties.

¶27

It is the case of the plaintiffs that one Mylarachar, and late plaintiff No.1 are the children of Late Devendrachar. Plaintiff Nos.2 to 4 are the children of plaintiff No.1 and Mylarachar was the elder brother of plaintiff No.1, who passed away on 09.03.2001.

¶28

4 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶29

Mylarachar's wife died about 4 years prior to his death and they had no issues, and that the late Mylarachar and the plaintiffs are in possession and enjoyment of the suit schedule properties. In 1973, Late Mylarachar purchased 'A' schedule property with the financial assistance of plaintiff No.1, from one Shivappa, Mallappa and Guddada Mallappa for valuable consideration under the registered sale deed dated 23.04.1973 and that, due to his personal necessities, and with the consent of plaintiffs sold 25 guntas of land in favour of one Parameshwarappa in 1997, and the plaintiffs and Mylarachar are enjoying remaining 1

¶30

acre 35 guntas of land. Due to his old age, the late Mylarachar was completely dependent upon the plaintiffs and his family members and since Mylarachar resided with the plaintiffs until his last breath and the plaintiffs performed all the post-death ceremonies at Mangota Village. During the life time and after the death of Late Mylarachar, the plaintiffs are in possession and enjoyment of the suit schedule properties. The late Mylarachar had not left any testamentary documents for the disposition of

¶31

5 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶32

his properties and died intestate, the plaintiffs being class one heirs are entitled to the possession of suit schedule properties as its owners. The defendant is the son of plaintiff's No.1's sister and the Late Mylarachar's sister. The sister of plaintiff No.1 is Smt.Bhageerathamma and that, due to the orphonage status, the defendant used to visit the house of the plaintiffs and late Mylarachar.

¶33

Plaintiff No.1 and Late Mylarachar jointly celebrated the defendant's marriage at Davanagere on 12.05.2000. The defendant having no manner of right, title or interest over the suit schedule properties, is trying to alienate the suit schedule properties in favour of 3^rd parties where he is projecting himself as an absolute owner of the suit schedule properties by virtue of a registered will dated 20.03.1997. The plaintiffs requested the defendant not to sell the suit schedule properties, but the defendant did not give any head to request made by the plaintiffs. Hence, a cause of action arises for the plaintiffs to file the suit for relief of declaration etc. Accordingly, prays to decree the suit.

¶34

6 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶35

6. Defendant filed a written statement denying the

¶36

averments made in the plaint, and it is contended that, one Hanumanthachar and Mylarachar are the brothers and Bhageerathamma is the sister of plaintiff No.1 and Mylarachar. It is contended that, the defendant is the only son of his parents, and due to communicable disease to the mother of the defendant i.e, Bhageerthamma and due to the bad health condition of the father of the defendant i.e. Shankarachar, maternal uncle Mylarachar and his wife Jayamma, having no issues, got the defendant reared, and bought up. The same is within the knowledge of everybody in the village. It is contended that the defendant was being reared and brought up like an adopted son by Mylarachar and his wife, and during the defendant's age of 4 years, the defendant's father passed away, and during the age of 10 years, the defendant's mother passed away.

¶37

It is contended that, Mylarachar was not educated as such, and admitted the defendant to the school, and the name of the father was given as Shankarachar instead of Mylarachar. It is contended that

¶38

7 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶39

the natural father of the defendant had 6 acres of land, which was mutated in the defendant's name, who was minor, then represented by his next friend Mylarachar, and the said land was sold, and out of the sale proceeds, the loan of the Mylarachar came to be cleared, and the remaining amount was handed over to the defendant. Since, the defendant looked after Mylarachar and his wife with love and affection, the late Mylarachar executed a registered will dated 20.03.1997 bequeathing the schedule 'A' and 'B' properties in favour of the defendant. After demise of Mylarachar, the defendant succeeded to suit schedule properties by virtue of registered will dated 20.03.1997. The defendant is in possession and enjoyment of the suit schedule properties as a absolute owner. It is contended that the plaintiffs did not question the will executed by the late Mylarachar in favour of the defendant. It is further contended that the plaintiffs are not in possession of the suit schedule 'A' and 'B' properties. The plaintiffs have no right, title or interest

¶40

8 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶41

over the suit schedule properties. Hence, pray to dismiss

¶42

the suit.

¶43

The trial Court, based on the pleadings of the

¶44

parties, framed the following issues.

¶45

Whether the plaintiffs prove that the plaintiff No.1 has become the owner of the suit property as he is the Calss-1 heir of the deceased Mylarchar?

¶46

Whether the plaintiffs further prove that the registered will dated 20.03.1997 is concocted, created, forged and not binding upon them?

¶47

Whether the defendant proves that he is the absolute owner of the A, B, schedule properties under the registered will dated 20.03.1997 executed by Mylarchar?

¶48

Whether the plaintiffs are entitle the relief as sought for?

¶49

What Order or Decree?

¶50

9. The plaintiff, to substantiate their case, plaintiff

¶51

No.2 was examined as PW1, examined one witness as

¶52

PW2, and marked 7 documents as Ex.P1 to Ex.P7.

¶53

9 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶54

In rebuttal, the defendant examined himself as

¶55

DW1, and examined two witnesses as DW2 and DW3, and

¶56

marked 12 documents as Ex.D1 to Ex.D12.

¶57

The trial Court after recording the evidence, hearing on both sides and on assessing the verbal and documentary evidence, answered issues No.1,2 and 4 in the negative, issue No.3 in the affirmative, and issue No.5 as per the final order.

¶58

The suit of the plaintiff was dismissed with cost vide judgment and decree dated 29.03.2006. The plaintiff, aggrieved by the impugned judgment and decree passed in O.S.No.194/2001 preferred an appeal in R.A.No.12/2006 on the file of the Learned I Additional District and Sessions Judge, Shivamogga. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

¶59

Whether appellant proves that the registered will dated 20.03.1997 is concocted, created, forged and not binding on them?

¶60

Whether the appellant proves that judgment and decree passed by the trial Court in O.S.No.194/2001 dated 29.03.2006 is illegal,

¶61

10 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶62

erroneous and requires interference in the hands of the appellate Court?

¶63

What order?

¶64

The first appellate Court, on reassessing the verbal and documentary evidence, answered point Nos.1 and 2 in the negative, and point No.3 as per the final order. The first appellate Court dismissed the appeal vide judgment dated 24.10.2016, confirming the judgment and decree passed by the trial Court in O.S.No.194/2001. The plaintiffs, aggrieved by the impugned judgments filed this Regular Second Appeal.

¶65

Heard the arguments of learned counsel for the plaintiffs, and the defendant.

¶66

Learned counsel for the plaintiffs submits that the defendant, to prove execution of Ex.D1, has not examined any attesting witnesses as required under Section 68 of the Indian Evidence Act. He further submits that, the Courts below have committed an error in relying on Ex.D1. He submits that, admission of PW1 is insufficient to prove the contents of Ex.D1. He also

¶67

11 -

¶68

NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶69

submits that, the Trial Court has committed an error in drawing the presumption under Section 90 of the Evidence Act, on the ground that the Ex.D1 was executed about 30 years back. He submits that the said document was alleged to have been executed in 1997. Hence, Section 90 of the Evidence Act is not applicable. He also submits that both the Courts below recorded finding that the Ex.D1 is the registered document. Hence, they committed an error in dismissing the suit of the plaintiffs. Therefore, on these grounds he prays to allow the appeal.

¶70

Per contra, the learned counsel for the defendant submits that PW1, in the course of cross-examination, has admitted regarding the execution of Ex.D1 by the executor. He submits that, fact admitted need not be proved as per Section 58 of the Indian Evidence Act. He further submits that, the plaintiffs have not denied the execution of a registered Will deed bequeathing 'A' and 'B' schedule properties in favour of the defendant in the plaint. Based on a registered Will, the defendant became the absolute owner of the suit schedule

¶71

12 -

¶72

NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶73

properties. He submits that when the plaintiffs have admitted the execution of the registered will, there is no question of examining any attesting witnesses. He submits that both the Courts below have rightly considered Ex.D1 and passed the impugned judgments. He submits that the plaintiffs have filed the suit for a declaration to declare that the registered will dated 20.03.1997 as null and void not binding and concocted. The burden is on the plaintiffs to establish that the said document is an out come of fraud. He submits that the plaintiffs have not produced any records to establish that the said will is concocted.

¶74

He submits that both the Courts have concurrently recorded a finding of facts that the plaintiffs have failed to establish, that plaintiff No.1 has become the owner of the suit schedule properties as he is a class I heir of the deceased Mylarachar and also held that the plaintiffs have failed to prove that a registered will dated 20.03.1997 is concocted, created, forged, and not binding upon the plaintiffs. The trial Court has held that the defendant has proved that he is the absolute owner of the

¶75

13 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶76

'A' and 'B' schedule properties under a registered will dated 20.03.1997 executed by Mylarachar. Hence, he submits that both the Courts below have rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

¶77

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

¶78

Whether the Trial Court could have come to the conclusion that Ex.D1 was held to be proved, when none of the attesting witnesses were called for by the defendant to prove the execution of the Will?

¶79

Whether the Courts below could have come to the conclusion that the Will was proved merely on the alleged admission of PW1?

¶80

Re. substantial questions of law 1 and 2:

¶81

Substantial Question of law Nos.1 and 2 are interrelated, and taken together for a common discussion to avoid the repetition of facts.

¶82

The plaintiffs, to prove their case, plaintiff No.2 was examined as PW1, and he reiterated the plaint averments in the examination-in-chief, and denied that the defendant is the adopted son of Mylarachar. He has

¶83

14 -

¶84

NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶85

deposed that, plaintiff No.1 is the class I heir of the deceased Mylarachar, and he succeeded to the estate of the deceased Mylarachar, and further, to prove that the suit properties stood in the name of Mylarachar, the plaintiff has produced the Genealogical Tree marked as Ex.P1.

¶86

Ex.P2 is the certified copy of the registered will executed by the deceased Mylarachar in favour of the defendant on 20.03.1997, which discloses that the Mylarachar bequeathed 'A' and 'B' schedule properties in favour of the defendant.

¶87

Ex.P3 is the RTC extract of the land bearing Sy.No.44/2 standing in the name of Mylarachar.

¶88

Ex.P4 is the mutation Register disclosing the fact of zubani partition between Mylarachar, Devendrachar and Mallachari.

¶89

Ex.P5 is the certified copy of the registered sale deed, which discloses that Mylarachar is the one, who has purchased the suit schedule property under Ex.P5.

¶90

15 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶91

Ex.P6 is the patta book, which discloses that Mylarachar was the holder of land bearing survey No.44/2.

¶92

Ex.P7 is the death ceremony card of Mylarachar. During the course of cross examination, it was suggested to PW1 that Mylarachar was the absolute owner of the 'A' and 'B' schedule properties, and bequeathed 'A' and 'B' schedule properties in favour of the defendant under a registered will dated 20.03.1997. The said fact was admitted by PW1, which reads as follows:

¶93

"It is true to suggest that Mylarachar has bequeathed his property out of love and affection in favour of Mallachar under registered will in the year 1997."

¶94

The admission of PW1 in the course of cross - examination is sufficient to hold that Mylarachar executed a will bequeathing schedule 'A' and 'B' schedule properties in favour of the defendant as per Ex.D1. Further, the plaintiff examined a witness as PW2, who has deposed that plaintiff No.1 is the absolute owner and in possession of the suit schedule properties, and the defendant is not in

¶95

16 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶96

possession of the suit schedule properties. During the cross-examination, it was suggested to PW.2 that, plaintiff No.1 is the absolute owner in possession of the suit 'A' and 'B' schedule properties the said suggestion was admitted by PW.2 and it is also denied that the defendant is in possession of the suit schedule properties.

¶97

In rebuttal, the defendant was examined as DW1, he reiterated the written statement averments in the examination-in-chief and deposed that, when the defendant was aged about 4 years, his father passed away, and subsequently, when he was aged about 10 years, his mother passed away. Mylarachar and Jayamma were looking after the defendant, and out of love and affection, Mylarachar bequeathed 'A' and 'B' schedule properties in favour of the defendant dated 20.03.1997 as per Ex.D1, and after the demise of Mylarachar the defendant has submitted the application to the revenue authorities, based on Ex.D1, the revenue authorities after due enquiry mutated the name of the defendant. The name of the defendant appears in the revenue records as

¶98

17 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶99

an owner and possessor. Further, the defendant also examined two witnesses as DW2 and DW3, who have deposed that the defendant was looked after by Mylarachar and Jayamma as their adopted son. Though, the defendant except examining DW2 and DW3 have not produced any records to establish that the Mylarachar and Jayamma adopted the defendant. The defendant has failed to prove that he is the adopted son of Mylarachar and Jayamma. Further, the defendant has produced the documents marked as Ex.D1 to Ex.D12.

¶100

Ex.D1 is original registered will dated 20.03.1997 which discloses that Mylarachar bequeathed schedule 'A' and 'B' schedule properties in favour of the defendant.

¶101

Ex.D1(a) and Ex.D1(b) are the signatures of Mylarchar

¶102

Ex.D1 (c ) is the signature of G.G.Jayappa

¶103

Ex.D1(d) is the signature of G.Basavarajappa i.e,

¶104

they are attesting witnesses to the registered will dated 20.03.1997.

¶105

18 -

¶106

NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶107

Ex.D1(e) is the signature of Basappa who is the

¶108

scribe of Ex.D1.

¶109

Ex.D2 to Ex.D4 are the RTC extracts, which discloses that, based on Ex.D1, the defendant's name was entered in the revenue records as a owner and a possessor.

¶110

Ex.D5 and Ex.D6 are Form Nos.9, and Form No.12 of

¶111

the residential house.

¶112

Ex.D7 is the Geneological tree

¶113

Ex.D8 and Ex.D9 are the house Kandayam receipts.

¶114

Ex.D10 is the death certificate of Mylarachar.

¶115

Ex.P11 and Ex.P12 are the forms No.9 and form

¶116

No.12 of assessment No.63/1.

¶117

From the perusal of the entire records, it is the case of the plaintiffs that, plaintiff No.1, being the class I heir of the deceased Mylarachar, have succeeded to the suit schedule properties, and become the absolute owner, and further, the plaintiffs have pleaded that the defendant by playing the fraud, by forging the signature of Mylarachar had got created Ex.D1. Though, the plaintiffs have made allegations against the defendant regarding the

¶118

19 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶119

execution of a will, the plaintiffs have failed to prove that Ex.D1 is the outcome of fraud, concocted, etc. The defendant has produced the original registered will, and further, PW1 has clearly admitted the execution of will by Mylarachar in favour of the defendant. The fact admitted need not be proved as per Section 58 of the Evidence Act.

¶120

Further, the Hon'ble Apex Court in the case of Thangam and another V/s Navamani Ammal in Civil Appeal No.8935/2011 held that,

¶121

" 15.4 The issue regarding specific admission and denial of the pleadings was considered by this Court in Badat and Co. Bombay Vs. East India Trading Co7. While referring to Order VIII Rules 3 to 5 of the CPC it was opined that the aforesaid Rules formed an integrated Code 7 AIR 1964 SC 538.

¶122

dealing with the manner in which the pleadings are to be dealt with. Relevant parts of para ‘11’ thereof are extracted below:

¶123

“11. Order 7 of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing

¶124

20 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶125

of a written-statement, the particulars to be contained therein and the manner of doing so;

¶126

These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.”

¶127

25. From the ratio laid down by the Hon'ble Apex

¶128

Court in the case referred above, it is clear that there is a denial of fact which is not specific, but merely the facts shall be taken to be admitted. Such an admission itself is a proof. No other proof is necessary. Admittedly, in the instant case, the plaintiff No.2 has clearly admitted the execution of Ex.D1 in the course of cross examination. The said admission itself is sufficient to hold that the defendant has proved the execution of Ex.D1, and no further proof is necessary.

¶129

21 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶130

In view of the ratio laid down by the Hon'ble Apex Court in the case of Thangam and another V/s Navamani Ammal in Civil Appeal No.8935/2011, trial Court has rightly concluded that the Ex.D1 was held to be proved even though none of the attesting witnesses were examined, in view of the admission of PW1. Both the Courts below, have rightly passed the impugned judgments. Admittedly, the burden is on the plaintiff to establish that the Will is forged, concocted. The plaintiffs have failed to discharge the initial burden placed on them.

¶131

Learned counsel for the plaintiffs relied upon the judgment of the Hon'ble Apex Court in the case of Sri.S.R.Srinivasa and others V/s S.Padmavathamma reported in (2010) 5 SCC 274 . The defendant, in the said case has taken a similar defense in the written statement, but the plaintiff has denied the genuineness of the will. From the perusal of para 48 of the said judgment wherein there is no admission except Puttathayamma had executed a will bequeathing only the immovable properties belonging to her in favour of Indiramma. In the said case,

¶132

22 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶133

there was no admission regarding the execution of a Will, but in the instant case, there is an admission by PW1 regarding the execution of a will and the genuineness of the will. The citation relied upon by the learned counsel for the plaintiff in the case of Sri.S.R.Srinivasa and others V/s S.Padmavathamma referred supra does not apply to the present case on hand.

¶134

Further, he has also placed reliance on judgment rendered by the Kerala High Court in the case of Sarada V/s Radhamani , reported in 2017 SCC Online KER 416 32, the Learned single judge referred the matter, and framed the question, whether a Will required by law to be attested shall not be used as evidence until one attesting witness atleast have been called for the proof of execution, if he is alive and subject to the to the process of the Court. Thus, this statutory mandate applies even in the execution of a will by the person by whom it purports to be a Will executed is not specifically denied or specifically admitted. There is no dispute regarding the ratio laid down by the Kerala High

¶135

23 - NC: 2025:KHC:10973 RSA No. 2096 of 2016

¶136

Court , but admittedly, in the instant case, there is no denial of execution of registered will dated 20.03.1997 by Mylarachar in favour of the defendant. At the cost of repetition, PW1 has clearly admitted regarding the execution of a registered will dated 20.03.1997.

¶137

In view of the above discussions, the judgment relied upon by the Learned counsel for the plaintiff in case of Sarada V/s Radhamani, referred supra does not apply to the present case on hand.

¶138

He has also placed a reliance on the judgment of the the Madras High Court in case of Malliga V/s P.Kumaran , in S.A.No.241/2015 in the said judgment, the plaintiffs have filed the suit for partition and separate possession, but the plaintiffs have not challenged the registered Will deed in the said case. In the case on hand, the plaintiff has filed a suit for declaration that, a registered will deed dated 20.03.1997 is illegal, concocted and not binding upon the plaintiff. The burden is on the plaintiff to establish that Ex.D1 was concocted. Hence, the judgment relied upon by the learned counsel for the

¶139