IN 1111/ H 1011 COURT OF KARNATAKA (‘IRCtTF BFNCII AT l)HARWAI) I):\ H1) [IllS [IlL 2( 1)AY OF \IAY. 2011 PRLS1N1 FIlL 110N Bib MR. JUSI ICE N. KUMAR A N I) FIlE II )NBil MR.,IUS I iCE ARAVINI) KUMr\R R.F.A. No. 2417/2006 (DEC/INJ) C/W R.F.A. No. 2416/2006(I)FC/INJ) IN R.F.A. No. 2417/2006 13e1\\ een: Sri. Bharindrasiouda S;o. Bhimanagouda Paul, Aged about 46 ears. 0cc: Ariculiurist. Ra: Bilagi. Ialul\ 13ilagi_ Bagalkol District. - Appellant (l3 Sri. (.S Bala angadhar. Advocate and Sri. Venkatesh M Kharvi. Advocate) And: Sri. i)hanappagouda Li Rajendra Sr o. oganagouda Pati I. Since Minor Aged about 16 years. Rep. by his natural father Yoganagouda Bhimanagouda PatH. Aged about 62 ears. 0cc: Aariculturist. R a: Bilagi. 1 aluk Bilagi. Bagalkot District. — Respondent (k. I -ser ed) I his appeal is filed under Section 96 of’ CPC against the judgment and decree dated 29.07,20()6 passed in 0,S,No,232’2004 on the file of I Addi, Civil Judge (Sr. Dn.) l3agalkot. dismissing the suit for declaration and injunction. IN R.F.A. No. 2416/2006 Bet\\ ecu: Sri. lharindraeouda S u. Bhimanagouda Paul. Aged about 46 ears. 0cc: Agriculturist. R/a: Bilagi. Taluk Bilagi. Bagalkot District. - Appellant i3’ Sri. (iS Balagangadhar. Ad ocate and Sri. \‘enkatesh M Kharvi. Ad\ocate) And Sri. I)hanappagouda u Rajendra S 0. Yoga nago u (Ia Pat ii. Since \1 inor Aged about 16 years. Rep. h\ his natural father Yoganagouda Bhimanagouda Pati I. Aged about 62 years. 0cc: Agriculturist. R a: Bilagi. 1 aluk Bilagi. Bagalkot District. - Respondent (13\ Sri ,Jagadish Paul. Advocate) I his appeal i l’iled under Section 9( of CPC against the judgment and decree dated 29.072U()6 passed in 0. S. o,266:2003 on the file of the I Addl .C i il .1 udge (SrDn.) Bagalkot. decreeing the suit for declaration and injunction. l’hese appeals coming on for final hearing this day. N.Kumar .1.. deli\ ered the l’ollow ing 4 JUDGMENT 1. These two appeals arise out of common judgment and decree passed by the trial Court. Therefore they are taken up for consideration together and disposed of by this common order. For the purpose of cons enience the parties are referred to as they are referred to in the original proceedings. 2. Danappagouda @ R.ajendra, son of Yoganagouda Patil is the plaintiff in 0.5. No. 266/03. Suit is filed against Sri Bharindragouda. younger brother of Yoganagouda Patil. Sri Bharindragouda is the plaintiff in 0.5. No. 232t04. which is tiled against Sri l)anappagouda il Rajendra. The plaintiff Danappagouda claims title over the suit schedule properties under a Will dated 09.05.1990 executed by Smt. Mudukavva Danappa Karakannavar in his favour. The plaintiff in 0.5. No. 232/04 has placed his claim on the basis of a Will dated 02.11.2001 executed by the very same lady in his favour. The subject matter of both the suits is one and the same. 3. The materials on record disclose that one Smt. Mudukavva Danappa Karakannavar was the absolute owner of the suit schedule property. She lost her husband at a very -4- young age and after his death. she came back to Hallur village of Bagalkot Taluk. her parental house. In fact she sold all the properties, which fell to her share after the death of her husband and purchased suit properties at liallur. She had no issues. She had a sister by name (Iangava. who was a close relative to her. Gangavva had three sons by name Yoganagouda, Bharindragouda and Virupaksha. The plaintiff in 0.5. No. 26612003 Danappagouda is the son of said Yoganagouda. Smt. Mudukavva died on 30.01.2002. After her death. Danappagouda made an application for mutating his name in the revenue records on the basis of a Will dated 09.05.1990. Bharindragouda objected to the same. He set up a Will dated 02.11.2001 and wanted his name to be mutated. In those circumstances. the revenue authorities declined to enter any of their names in the mutation records and called upon the parties to resolve their disputes in a Civil Court. That is how these suits are filed for declaration of title on the basis of aforesaid two Wills. 4. The case of plaintiff-Danappagouda is that Smt.Mudukavva was the absolute owner of the suit schedule 1 -5- properties. After MLldukavva left her hushands place after his death she came to her parental place at Ilallur village. Bagalkot Taluk and she was looked after by plaintiff and mother and she used to reside “ith them. Iherefore she had much love and affection towards Danappagouda. and out of the said love and affection tosards him she executed a Registered Will dated 09.05.1990 in his favour without anybody’s force. before the elders of Bilagi Taluk, ihen she was in sound disposing state of mind. [he said Will is her last Will and she has not executed any other Will. Mudukavva died on 30.01.2002 ithout leaving behind her any male or female heirs. By virtue of the said Will, plaintiff has succeeded to the suit property. The defendant is in no way concerned with the suit lands. At no point of time he was in possession and enjoyment of the suit lands. When Varadi was tiled to mutate his name in the revenue records, the defendant filed objections on the strength of the created document. The Tahasildar passed an order directing the parties to approach the Civil Court for their rights. Plaintiff contended that Smt. Mudukavva has not executed any second Will in favour of an5 body. Defendant fabricated some documents. The plaintiff and his family -6- members are in actual possession and enjoyment of the suit lands prior to the death of said Mudukavva and even after her death. The defendant is trying to interfere with their possession and therefore the suit was flied seeking declaration of title in respect of the suit schedule properties on the basis of the aforesaid Will. 5. Defendant has filed a detailed written statement denying all the allegations made in the plaint. It is his specific case that he is the second son of Smt. (iangavva. While he was minor. Mudukavva looked alter him as her son. Therefore she had much love and affection towards the defendant. She got cultivated the suit lands through him. Danappagouda is the son of defendant’s elder brother. Mudukavva had no love and affection to’ards the plaintiff. As he was minor, she also had no love and affection towards father of the plaintiff. Till her death she did not leave Hallur village. Defendant was also looking after Smt. Mudukavva as her mother till her last breath. Out of the said affection Mudukavva came to the conclusion that defendant was capable of managing the suit lands. Therefore she executed the Will on 02.11.2001 in the presence / -7- of the elders in his favour. She was in a sound disposing state of mind on that day. On 30.01.2002 Mudukavva expired and he has performed all the funeral ceremony. Thereafter he came to know about the Will set up by the plaintiff, lie filed objections before the Tahasildar. The plaintilVs father in collusion with the political and revenue officials got created the Will before the Sub-Registrar office through some other woman by impersonation in place of Mudukavva. Mudukavva has executed the Will in favour of the defendant out of much love and affection and voluntarily on 02. II .2001 and it is her last Will. Defendant is the owner in possession of the suit lands. Therefore plaintiff is not entitled to any relief. [)efendant also preferred a counter claim for a declaration that he is the owner of the properties by virtue of the Will dated 02.11.2001 and also sought for a decree for injunction. Same set of facts are set out in 0.5. No. 232104 by the respective parties. 6. A joint memo was filed by the parties before the Court for clubbing the suits. Accordingly the cases were clubbed and common evidence was recorded. Trial Court has framed following issues in both the suits. -8- Issues in ().S.%o.266/2OO3 1. Whether the plainti fi’ pro’es that the deceased Mudaka va W(o. Danappa Karakanna ar executed a registered Will dated 09rO5 1990 in his Ia our. and by \ irtue of the said will the plainti IT become the ow ncr of suit lands hearing Rs.No.147. 253 1 •2 and 379 2 situated at 1-lallur village. Bagalkot taluka? 2. Whether the plaintiff pro\es thai as on the date of suit he was in possession ol suit properties? 3 Whether the defendant pro\ es on 02 11 2001 said Mudakavva executed a Will in his fa our? 4. b what relief the plaintiff’ is entitled.? 5. What decree or order? Addl, Issue No. 1: Whether the defendant pro es that he became the ow ncr h virtue of Will dated 02’l 1 ‘2001 executed b\ Mudaka\\ a in his ia\ our? Addi. issue No.2: Whether the defendant proves that he is entitled for inj unction as prayed for? Issues Ill OS.No.232/2OO4 I. Whether thc plaintiff’ pro\es that on 2 112001 the dec eased S ml. M u d a k a v v a W o, 1) an app a Ka ra k an ii a a r executed a \ ill and b\ \ irtue ot said Will the plaintiff become the ow ncr of suit lands? 2. Whether the plaintiff pros es that he was in possession and enjo mciii of suit lands as on the date of suit? 3. Whether the defendant proes that on 9/5/90 the said deceased Smi. Mudaka\ ‘ a executed registered Will in la\oul 01 dLlcndant i C l)anappaaowda a RajCndra S 0 \ oganagouda Paul? 4. Whether the plaintiff is entitled for relief as claimed? 5. What order or decree? 7. l’he parties in order to Prove their respective cases examined plaintiff’s father as P.W. 1 and an attesting v itness to the \\ ill dated ().05. 199U. as P.W.. Plaintiff also produced 8 documents. \\hich are marked as l-x.P. 1 to lx.P.28. Defendant was examined as D.W. I He also examined the attesting witness of the Will as i).W.2 and scribe of the Will dated 02. ii .200 1 as 1). W.3 . He produced 9 documents. hich are marked as lx.P.l to l:x.P.O. 8. Ihe trial Court on the consideration o the atoresaid oral and documentary evidence on record held that plainti if has proved that deceased Mudukavva executed a registered Will dated 09.05.1990 in his fa\our and b irtue of the said Will plaintiff has become oner of the suit schedule properties. Ii also held that Will set up b the defendant dated 02.11.2001. is not proed. it also held that plaintiff as in possession of the suit schedule properties as on the date of the suit. Therefore it decreed the suit of the plaintiff in U.S. No. 26603 and dismissed the suit of the defendant in U.S. No. 232 04. -to- Aggrieved by the said judgment and decree of the trial Court, the defendant in 0.5. No. 266/03 has preferred R.F.A. No. 24 16/2006 and plaintiff in O.S. No. 232/04 has preferred R.F.A. No. 24 17/2006. 9. Learned counsel appearing for the defendant Sri Bharindragouda submitted that, merely because the Will dated 09.05.1990 is registered, it would not get credence and trial Court was in error in holding that said Will is proved on that count. Even the evidence of the attesting witness in the instant case does not conclusively prove due execution of the Will by the testator. However, he contended that even if the Will is said to be duly executed and registered the recitals in the said Will do not depict what the testator intended. When a Will is made giving the property to one person, thus excluding the natural heirs to the property a suspicious circumstance do exist. it is for the propounder of the Will to dispel the said suspicious circumstance. In the instant case the recitals in the Will go to show that testator wanted to give her properties in favour of the plaintiff’s father because he took care of her. If that was the intention, the property should have been given to plaintiff’s 1— 4 -1’ father and not to the plaintiff. Therefore the plaintiff would get any right under the said Will. Even otherwise there is no implicit and explicit evidence to exclude the natural heirs and no satisfactory explanation is forthcoming in the evidence of the plaintiff. In this regard. in fact the plaintiff did not step into the witness box at all. As on the date of the suit he was a major. Therefore he submits the finding recorded by the trial Court that the Will is proved, is erroneous and is liable to be set aside. 10. I.earned counsel further contended it is the defendant who took care of the deceased Smt. Mudukavva from his younger days. He was looking after her lands. It is he who performed her obsequies ceremony after attending to her funeral. It is in that context she executed a Will in his favour on 02.11.2001. In order to pro’ e the said Will, one attesting witness and scribe to the Will have been exanilned. But the trial Court has discarded all these evidences sithout any reason and is appears to be carried aay by the fact that this Will is not registered and this Will came into existence subsequently. Therefore he submits the finding recorded by the trial Court that the 12 dated 02.11.2001 is not proed. is also erroneous and it requires to be set aside. II. Per contra. learned counsel for the plaintiff supported the impugned judgment and decree. 12. In the light of the aforesaid rial contentions, the points that arise for our consideration is. (1) ‘W hether the finding of the trial Court that the Will dated 09.05.1990 as per I x.P.5 stands proed and calls for an) interferencc? (2) Whether the finding of the trial Court that the Will dated 02.11.2001 as per ltx.l).2 is not proed. is justified and calls for an) interference? 13. 1 rom the material on record it is clear that Smt. Mudukana. the oner of suit schedule property though marriedhad no issues. After her death,the property sou1d ha’e deoked on her sisteç Gangana. if she as alie. As she sas not ali’e. her properties isould deole on her children. Admittedly Smt. Gangana had three sons. ‘.i,.. Yoganagouda. Bharindragouda and Virupakshagouda. I herefore it is these three sons of Smt. Gangana. sho are the natural heirs. isho ha’e succeeded to the estate of Mudukana on her death. Noss Yoganagouda’s son l)anappagouda has set up a Will dated ( -13- 09.05.1990 shich is marked as Fx.P.5 uhich is also duly registered to deny the legitimate share to which the natural heirs of Mudukavva are otherwise entitled to. 14. The very fact that natural heirs are excluded by this Will and no explanation is forthcoming in the Will for excluding the natural heirs by itself is a suspicious circumstance surrounding the execution of the Will. It is for the legatee to dispel this suspicious circumstance. it is in this context when we look at Ex.P.5 the recitals in the Will which make it very clear the executant to the Will was giving the property to Sri Yoganagouda Paul-father of l)anappagouda Patil. because he took care of her and also took care of the schedule lands. She had love and affection towards him and therefore she wanted to bequeath her properties in his fa our. If this was the intention of the executant in bequeathing the property by excluding the other natural heirs, the bequest should have been in the name of Yoganagouda Patil. Unfortunately the bequest is not made in favour of Yoganagouda. but it is in favour of his son. a minor son-Danappagouda, who was hardly aged about 4’,’ years old on ‘I. U- the date ol the Will. -14- 15. The material on record shows this Yoganagouda married one Smt. Annapoorna c? Anusuya. He had no children through her. She has filed a suit for maintenance in 0.5. No. 136/02, which came to be decreed. During the lifetime of his first wife. he started cohabiting ith one Smt. Lakshmibai, without marriage. The plaintiff is the son of the said Smt. Lakshmibai. In the background of this admitted positior Sint. Mudukava in the normal course would not have bequeathed her property in favour of an illegitimate child whom she had not even seen. when she had three sons of her sister who are the natural heirs and who 11)0k care of her. The evidence on record also shows, that lady never depended on these three sons. she had engaged the services of one Smt. Rachavva Hiremath, who was there to assist Mudukavva not only inside the house but also even outside the house. 16. The evidence of P.W.1-father of the plaintiff, clearly demonstrates that Mudukavva was hale and healthy till her death. Except the assertion by P.W. I and D.W. I that they took care of this lady, absolutely, there is no evidence on record to show that these two brothers took care of Smt. Mudukavva at 0 -‘5- any point of time. Till her death the R.T.C. of these properties stood in her name. She was hale and health) and she was moving around and when she needed the assistance, she had the services of Smt. Rachava Iliremath. Under these circumstances the entire recitals in the Will’Ex.P.5 that. she was taken care of by plaintiff’s father. she had lose and affection towards him and therefore she wanted to bequeath the property in favour of plaintifç falls to the ground. Even if all that is proved that property should have been bequeathed to him and not to his illegitimate son whom she had not seen. Therefore though the Will is registered, an attesting witness is examined and all the other legal requirements are complied with, is hard to believe that it is the Will of Smt. Mudukavva. In fact the attesting witness also has asserted that she executed a Will in favour of plaintiff’s father because of the relationship that existed between them. Whereas the recital in the Will clearly demonstrates it is given to the minor son. 17. In the light of these undisputed facts it is difficult to accept the case of the plaintiff that deceased Smt.Mudukavva executed the said Will-Ex.P.5 in his favour out of her own free 1— 0 -16- sill and there was any intention to bequeath the said property to him. learned trial Judge is carried aay by the fact: firstly that it is a registered Wilt and secondly when this discrepancy was pointed out, according to him it is a minor discrepancy or a mistake. In this regard trial Court has not properly appreciated the significance of a Will. the facts pleaded and the evidence on record and therefore the finding recorded by the trial Court is not sustainable. The trial Court should know that Will is not a compulsorily registerable document. Merely because the said document is registered it does not follow that it is duly executed. Execution of a Will has to he proved in accordance with law and mere registration of a Will is no proof of due execution of Will. These aspects have been completely lost sight of by the trial Court and therefore the finding that Will stands pro’ ed. is erroneous and requires to be set aside. 18. In that view of the matter when we look into the evidence produced subsequent to the execution of the Will, it would go to show that the plaintifrs lather was assisting the executant of the Will in managing the property. Even if these documents are accepted and the case of the plaintiff is accepted. it will also 1’ -17- strengthen our view that the intention of the executant was to give the property to plaintiff’s father and not to the plaintiff. Therefore seen from any angle the said finding recorded by the trial Court is unsustainable and accordingly it is set aside. 19. In so far as the Will dated 02.11.2001 Fx.l).2 is concerned, it is the specific case of the defendant that as Mudukavva had no children, when he was young virtually Mudukavva brought him up as her son. It is the evidence of the defendant, that Smt. Mudukavva was residing at Hallur village. whereas he was residing at Bilagi village in the joint family. There is absolutely no material placed on record to show that the defendant ever lived with Smi. Mudukavva in Hallur village as her son. Secondly it is the specific case that under a family partition. other two brothers took malor share and he was given a minor share and Mudukavva prevailed upon him and assured him that she would give her property and he should not quarrel with her brothers. If really that was the reason for executing the Will, the Will is executed on 02.11.2001 roughly about three months prior to the date of her death on 30.01.2002. Lt is also on record that she was aged 88 -18 years as disclosed from the recital of I.D.2. hereas according to the plaintiff, she had crossed 100 years. 20. At any rate. shen a Will came to be executed three months prior to the death and shen the age is 88 yean. though there is no legal bar for execution of the Will the propounder of the ill has to dispel all suspicious circumstances surrounding the Will apart from saying that the testator tas in sound state of mind. In this regard cidence tendered by the defendant is fully lacking. It is on record that all the three brothers lised together and Mudukana had some lose and affection toisards all the three brothers and in the eidence of all the parties all the brothers took care of her. If Mudukassa has to exclude the other t’o brothers and make a bequest in fa4our of only one brother. certainly there should be some reason. In the Will no reasons are gken for disinheriting others tho ould be the natural heirs in the absence of a Will. If the defendant is unable to substantiate his claim that he sas close to the deceased Mudukana as compared to other to brothers. absolutely there is no eidence on record. No doubt he has examined the scribe as sell as one attesting iitness the will L 4 L.l).2 which is sritten on a stamp paper and which is purchased by the defendant. It will only go to show that he took active part in the preparation of the Will as he is the person who purchased the stamp paper. lie also admits that on the day the Will was eecutedthough Smt. Mudukavva was in sound state of mind, she was ailing and was confined to bed. Therefore his mere assertion about her sound state of mind would not be sufficient. If she was ailing and confined to bed, in the normal course Doctors evidence should have been 1 adduced. 21. At any rate. having regard to the fact that this Mudukavva was an independent lady and she was not dependent on any of these three persons and she made her own arrangements, 1 would go to show that if she has to give this property to anyone of them as contended In the defendan there is no reason wh she had to wait till the last day. No reasons are forthcoming for not providing for her properties much earlier. Under these circumstances the trial Court was justified in holding that the Will:Ex.D.2 is not proved. Though trial Court may not be justified in holding that it is not proved because it is not 20 registered a compared to the other \k ill. Non registration b itself ould not tale a the \\ ill hut other reasons gix en h the trial Court for non acceptance of due e\eculiofl of Will I x.I).2 is based on legal e idence and does not suffer from an legal infirmities,