In the present case also, no reference is made about Umesh, the only son of the executant and it is ununderstandable as to how he could be excluded, that too, he (executant) being an ex-military man. Hence the contents of the testamentary document will have to be appreciated in the context of circumstances and not vis-à-vis rules for intestate succession. It is only for this limited purpose the court examines the nature of the bequest. In the present case, this court is not substituting its opinion about what the testator's will or intention was.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R.S.A. Nos. 1952/2005 and 220/2006
Decided On: 18.03.2016
Chennappa Gowda and Ors.
Vs.
N.C. Rajashekara and Ors.
Vs.
N.C. Rajashekara and Ors.
Hon'ble Judges/Coram:A.V. Chandrashekara, J.
1. Both these appeals filed under Section 100, CPC are directed against the judgment and decree passed in O.S. 251/09 which is pending on the file of Civil Judge (Junior Divn.), Channarayapatna, and the judgment passed by the Civil Judge (Senior Divn.), in R.A. 12/02.
2. The appellant in R.S.A.1952/05-Channappa Gowda was the third defendant in the suit filed by N.C. Rajashekara for the reliefs if declaration of title and permanent injunction in respect of 50% of the land measuring 6.10 acres in Survey No. 15 (new No. 32) of Begur Hobli, Nagenahalli village, Channarayapatna Taluk. Plaintiff had a brother by name N.C. Guruvaiah and both of them were brothers of one person named N.C. Chandrappa who was an ex-serviceman. Chandramma is the wife of Chandrappa and Umesh is the son born to them.
3. Government had granted 6.10 acres of land to N.C. Chandrappa and he was in possession of the same till his death. According to the plaintiff, his brother had executed a will in favour of himself and his brother-Guruvaiah on 15.4.1972 bequeathing the entire extent of 6.10 acres. Chandrappa died in 1984. Soon after his death, himself (plaintiff) and his brother became the joint owners of the schedule property. With these averments he chose to file the suit against Chandramma, wife of Chandrappa, Umesh (son of Chandrappa) and Channappa Gowda-purchaser of the entire extent of land from Chandramma and Umesh and the legal heirs of Guruvaiah, joint legatee.
4. One of the legatees i.e. Mr. Rajashekara filed a suit requesting the court to declare that he is entitled for half share by virtue of the registered will dated 15.4.1972 and for mesne profits of Rs. 10,000/-. The said suit was contested by the third defendant-Channppa Gowda denying all the material averments, but admitting the fact that schedule property in question originally belonged to Chandrappa and after his death, to his legal heirs-Chandramma and Umesh who in turn sold the same to him registered sale deed dated 3.8.1988. It is his case that he is in lawful possession and enjoyment of the suit property, having acquired the same from Chandramma and Umesh who were the absolute owners in possession of the suit property, having inherited from Sri Chandrappa.
5. Chandramma and Umesh had filed written statement sailing along with the third defendant. All of the requested the court to dismiss the suit.
6. On the basis of the pleadings, the trial court framed the following issues:
"1) Whether the plaintiff proves that suit schedule property is the self acquired property of the late N.C. Chandrappa?
2) Whether the plaintiff proves that late N.C. Chandrappa executed a will in favour of him and 4th defendants husband?
3) Whether the plaintiff is entitled for half share in suit schedule property?
4) Whether the 3rd defendant proves that 1st and 2nd defendants are the absolute owners of the suit schedule property?
5) Whether the 3rd defendant proves the alleged will is concocted?
6) What Order or decree?"
Sole plaintiff-Rajashekara is examined as PW2 and Kodandaramaiah who is stated to be the scribe of the will marked as ex. P1, is examined as PW2. The purchaser of the property-Channappa Gowda is examined as D.W. 1 and Umesh is examined as D.W. 2. 19 exhibits have been got marked on behalf of the plaintiff and 3 exhibits are got marked on behalf of the defendants. Ultimately the suit came to be dismissed vide judgment dated 12.4.2000 answering issue Nos. 2 and 3 in the negative and issue Nos. 1 and 4 in the affirmative.
7. Against the said judgment and decree, the unsuccessful plaintiff-Rajashekara, one of the legatees to the will, chose to file an appeal in terms of Section 96, C.P.C. before the court of Civil Judge (Senior Divn.), Channarayapatna. The said appeal is allowed and the judgment of the trial court is set aside and he is declared to be the owner to the extent of 50%, with a direction to the trial court to effect partition and separate possession of 50%. Being aggrieved by the said judgment and decree, the purchaser of the suit property-Channappa Gowda has filed an appeal in R.S.A.1952/05.
8. Chandramma and Umesh have chosen to file a separate appeal in R.S.A. 220/06 for affirmation of title they had transferred in favour of Channappa Gowda-3rd defendant. As such, both the appeals are taken up together for common disposal.
9. Heard the learned counsel for the parties.
10. R.S.A. 1952/05 is admitted to consider the following substantial question of law framed on 19.3.2008:
"Whether the Lower Appellate Court was justified in holding that the will is established on the basis of enhanced attesting witness?"
R.S.A. 220/06 is admitted to consider the following substantial question of law framed on 3.3.2011:
"1. "Whether the First Appellate Court is right in holding that Ex. P1-'WilV has been proved?"
2. "Whether the suit is maintainable for non-joinder of necessary parties?"
REASONS
11. The fact that the property in question originally belonged to the Government and it came to be granted in favour of Chandrappa who was an ex-serviceman is not in dispute. Soon after the grant was made, he was in possession of the property till his death in 1984. The case of the plaintiff-Rajashekara is that his brother chose to bequeath the entire extent of 6.10 acres in his favour and in favour of Guruvaiah, on 15.4.1972 which is marked as Ex. P1. The genuineness of this will is emphatically denied not only by the wife and children of deceased Chandrappa, but also the third defendant- purchaser.
12. Whenever the execution of a will is denied, burden is always on the propounder to ward off all suspicious circumstances surrounding the will. Principles to this effect have been succinctly enunciated by the Hon'ble apex court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma (MANU/SC/0115/1958 : AIR 1959 SC 443). In the said case, it is held that the propounder is not only expected to prove due execution of the will, but also to prove that the executant, i.e. testator was in a sound disposing state of mind at that time.
13. Whenever a legatee intends to exclude his natural heir, who would otherwise inherit the property, is expected to indicate strong reasons for such exclusion. The recitals in Ex. P1 disclose that Chandramma- wife of Chandrappa was not leading a good life and that her character was suspicious. Nobody is examined to prove such a serious allegation. Whenever the genuineness of a will is disputed, one of the attesting witnesses must be examined to support the same in terms of Section 68, Evidence Act and Section 63, Indian Succession Act.
14. What is held in the case of Rani Purnima Debi & Another v. Kumar Khagendra Narayan Debi & Another (MANU/SC/0020/1961 : AIR 1962 SC 567) is that if a will is registered, it is a circumstance which may, having regard to other circumstances, prove its genuineness. But the mere fact that a will is registered will not, by itself, be sufficient to dispel all suspicion regarding the existence of suspicious circumstances. In the case of Kalyan Singh v. Smt. Chhoti & Others (MANU/SC/0258/1989 : AIR 1990 SC 396), the Hon'ble apex court has held that a will is one of the most solvent documents known to law and the executant cannot be called to deny its execution or to explain the circumstances in which it was executed. But trustworthy and unimpeachable evidence should be produced before the court to establish the genuineness and authenticity of the will.
15. In the case of Ram Piary v. Bhagwat (MANU/SC/0306/1990 : AIR 1990 SC 1742), the Hon'ble apex court has held that there must be some strong reason to exclude the natural heirs. In the case of Joseph Anthony Lazarus (Dead) by L.Rs. v. A. Jfrancis (MANU/SC/1716/2006 : AIR 2006 SC 1895), the Hon'ble apex court had considered a case of a testatrix bequeathing the property to her two sons only, though she had 4 sons. There was no mention of the other two sons in the will. She was of advanced age living with one of the two beneficiaries. The Hon'ble apex court has held that 'it would be a very strong circumstance.'
16. In the present case also, no reference is made about Umesh, the only son of the executant and it is ununderstandable as to how he could be excluded, that too, he (executant) being an ex-military man. Hence the contents of the testamentary document will have to be appreciated in the context of circumstances and not vis-à-vis rules for intestate succession. It is only for this limited purpose the court examines the nature of the bequest. In the present case, this court is not substituting its opinion about what the testator's will or intention was.
17. The legal principles that could be drawn from the decisions referred to above is that the propounder of a will is expected to prove its due execution and if there are suspicious circumstances, the propounder must before remove the suspicious circumstances by adducing cogent and acceptable evidence, though every circumstance may not be suspicious circumstance.
18. The evidence of a scribe cannot be equated with the evidence of a attester to the will however strong it maybe. Therefore by no stretch of imagination it can be considered as proof in regard to the execution of the will. Apart from this, the will is dated 15.04.1972 and Chandrappa died in the year 1984. The will did not surface till the suit was filed in the year 1990. For the first time, the will surfaced 6 years after the death of Chandrappa.
19. Umesh, the only son of Chandrappa was aged 21-22 years when the alleged will came into existence. Chandrappa had no grouse against him. It is not the case of Rajashekara that Umesh is not the son of Chandrappa. Even if one were to accept that Chandrappa did not have good opinion about his wife-Chandramma, nothing is indicated as to why he excluded his own son who was his natural heir. Viewed from many angle it can certainly be said that the first appellate court has not assessed the evidence in right perspective.
20. To upturn a well considered judgment of the trial court, the first appellate court dealing with an appeal under Section 96 C.P.C. should come to close quarters and assign reasons indicating as to where the trial court has gone wrong and what should have been the right approach. This exercise must be done by the appellate court when it intends to upturn a well considered judgment. Suffice to state that the first appellate has not done this important duty, keeping in mind the rigor of Section 96 C.P.C. which is a statutory right available to the aggrieved because of the judgment of the trial court.
21. In fact the name of the 3rd defendant-Channappa Gowda is found in column No. 9 as Khatedar and his name is incorporated through proper mutation proceedings in MR. 14/88-89. This is found in Ex. D3. Ex. D2 is also a copy of the mutation. Therefore, statutory presumption is available under Section 133 of the Land Revenue Act in regard to genuineness of entries shown in revenue records. For all practical purposes, the said presumption holds the field till it is lawfully substituted by a proper order. Ex. D2 and D3 very well support the case of the third defendant-purchaser. If really plaintiff was in possession of the scheduled property soon after the death of his brother-Chandrappa, nothing came in his way to have got his name incorporated in the revenue records, in which event his name would have found place in column No. 12(2), indicating the name of the person in possession. Strangely enough, the plaintiff has not produced any revenue document at all.
22. In fact, as per Section 132(1) of the Land Revenue Act, 1964, the plaintiff or applicant in a suit or application should annex to the plaint or application, a certified copy of the record of rights relevant to such land, provided the suit or application is in respect of an agricultural land. Sub-section (2) mandates that if the plaintiff or applicant fails to do so, the court should give some time within which the same will have to be complied with, lest, the plaint will have to be rejected in terms of VII Rule 11(d), C.P.C. It is unfortunate that the trial court has not looked into these mandatory provisions found in Section 132 of the Land Revenue Act, which is very much relevant to a suit relating to agricultural land. Therefore, all the civil courts of original jurisdiction are expected to look into whether this mandatory requirement is complied with before the registering the suit.
23. Production of a certified copy of the record of rights or a copy of mutation is essential for the court to know as to whether the land is an agricultural land and whether any acquisition is made by the competent authorities. If such record is produced and it is shown that the land in question is already acquired under the relevant provisions of the Land Acquisition Act or any other law in force, the question of grant any relief does not arise. Similarly if the agricultural land is already converted into non-agricultural use, and it is depicted in column Nos. 9 and 10 of RTC, the court can call upon the plaintiff to value the suit under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, provided the relief of declaration of title is sought. If the land is agricultural land assessed to land revenue, then the court fee will be reckoned for valuation under Section 7(2) of the Court Fees and Suits Valuation Act. Therefore, all the civil courts must put up in the check sheet/slip as to whether certified copy of mutation records or index of lands is produced, and if not, to put up a note about the bar of law contemplated under Order VII Rule 11(d), C.P.C. read with Section 132 of the Karnataka Land Revenue Act.
24. In this view of the matter, the first appellate court has thoroughly adopted a wrong approach to the real state of affairs. It has not re-assessed the entire evidence on the touchstone of intrinsic probabilities. Therefore substantial question of law framed in R.S.A. 1952/05 will have to be answered in the negative, holding that the first appellate court is not justified in coming to the conclusion that the will has stood proved in the light of the examination of the scribe to Ex. P1.
25. Mr. B.C. Rajeev, learned counsel appearing for Chandramma and Umesh has fairly submitted that the appeal in R.S.A. 220/06 is only to support the case of the purchaser-Channappa Gowda and not to claim any independent right in their favor.
26. Similarly, the first appellate court has thoroughly failed in holding that Ex. P1-will has stood proved. In the light of Chandramma and Umesh having already executed sale deed in favor of Chandrappa Gowda and there being no challenge to the said sale by the daughter of Chandrappa, making her as a party in the suit filed by Rajashekara would not arise. Accordingly, substantial question on law No. 2 framed in R.S.A. 220/06 is answered in the affirmative. In view of the findings on the above, substantial questions of law, both the appeals will have to be allowed.
27. In the result, the following order is passed:
"ORDERI) The appeal filed by Channappa Gowda in R.S.A. 1952/05 is allowed. He is declared as the absolute owner in respect of 6.10 acres in survey No. 15 (new No. 32), Nagenahalli Village, Channarayapatna Taluk, on the basis of the sale deed marked as Ex. D1.
II) Similarly, R.S.A. 220/06 filed by Chandramma and Umesh is also allowed.
III) Parties to bear their own costs."
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