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1991 Supreme(Kar) 319
Karnataka High Court
Kempamma - Appellant
Versus
Kalamma - Respondent
Decided On : 07-19-91
R.S.A. : 325 of 1981
K.S.RAMASWAMY IYENGER, S.ANANTHA, S.V.NARANIMHAN, S.V.RAGHAVACHAR
Proper pleading and proof of the execution and attestation of a Will are essential, and the presumption under Section 90 of the Evidence Act does not extend to the Will being the last Will of the testator.
Headnote:
Will - Property Dispute - Evidence Act, Section 90 - The court discussed the applicability of Section 90 of the Evidence Act in proving the authenticity of a registered Will. The court held that the presumption under Section 90 cannot be extended to a Will without proper averments and evidence of its execution and attestation. The court also emphasized the need for the propounder of the Will to plead and prove its proper execution and attestation, and that the presumption under Section 90 does not extend to the Will being the last Will of the testator.
Fact of the Case:
The appellant filed a suit for declaration of title and possession of agricultural lands and a house against several defendants. The suit was based on a registered Will executed by the appellant's father in her favor. The respondents contested the suit, denying the authenticity of the Will and claiming that the properties were joint family properties.
Finding of the Court:
The trial court decreed the suit in favor of the appellant for some properties but dismissed it for one property. The first appellate court set aside the trial court's judgment. The High Court, on appeal, held that the appellant failed to prove the authenticity of the Will and that the first appellate court's judgment was not vitiated by irregularities.
Issues: The issues included the authenticity of the Will, ownership of the properties, and the applicability of Section 90 of the Evidence Act.
Ratio Decidendi: The court emphasized the need for proper pleading and proof of the execution and attestation of a Will, and that the presumption under Section 90 of the Evidence Act does not extend to the Will being the last Will of the testator.
Final Decision: The High Court dismissed the appeal, upholding the first appellate court's decision and emphasizing the need for proper pleading and proof of the authenticity of the Will.
( 2 ) THE appellant was the plaintiff in O. S. No. 190 of 1973 on the file of the Addl. Munsif, JMFC, Tiptur. She has filed the said suit for declaration of title and possession against six defendants in respect of Items 1 to 3 consisted of agricultural lands and Item No. 4 a house bearing Kaneshmari No. 29.
( 3 ) THE case made out by the appellant, in brief, are as follows : that the Suit Schedule properties belong to her father Chinnegowda who has executed a registered Will in her favour on 6-4-1925. After the death of Chinnegowda, she has become the owner and paying the land revenue to the properties. The 5th defendant Honnegowda who is her son was managing the suit schedule properties on her behalf in a fiduciary capacity and his name has been entered in the Revenue Records.
( 4 ) THE first respondent filed an Original Suit in No. 176 of 1962 against the 5th defendant Honnegowda for maintenance and she was succeeded in that suit at the stage of Appeal in R. A. No. 165 of 1966. She is the wife of the 5th defendant. Likewise, respondents 2 to 4 are defendants 2 to 4 before the trial Court have also filed another maintenance Suit against Honnegowda which was decreed. In connection with O. S. No. 176 of 1962, an Execution Petition was filed and the Suit schedule properties were attached an auction was fixed to be held on 27-6-1973. The appellant having come to know of it, filed O. S. No. 190 of 1973 contending that the decrees obtained by the first respondent and respondents 2 to 4 are collusive one and obtained by fraud. She has further contended that she and defendant no. 6 one Shivanna-brother of defendant No. 5 were not parties to the Maintenance Suits. She has contended that the schedule properties belong to her and respondents 1 to 4 have no right to proceed against those properties. Likewise, the decrees in O. S. No. 176 of 1962 and O. S. No. 652 of 1965 were not binding on the appellant. It is further averred that, respondents 1 to 4 have falsely created a partition regarding the suit items 1 to 4 in order to get decrees.
( 5 ) THE defendants 5 and 6 who were not made parties before the first appellate Court and also in this appeal, were remained absent before the trial Court. Subsequently, they are placed ex parte and the suit was dismissed against them and also against defendant No. 4 who is the 4th respondent in this appeal. Respondents 1 to 3 have contested the suit and denied the execution of the will in favour of the appellant on 6-4-1925 by her father. They have also denied the fact that she was in possession of the said properties and the 5th defendant was only managing those properties. It is contended that the suit schedule properties were joint family properties where defendants 5 and 6 have got partitioned those properties during the lifetime of their father and thereafter, they were in exclusive possession of their respective shares. The appellant also got a share and she was enjoying exclusively along with her husband in respect of her share of the properties. Item No. 1 of the said property is the self-acquired property of defendant No. 5 and he had shares in the properties at Items 2 and 3. They have further contended that the appellant in collusion with defendant No. 5 in order to defraud respondents 1 to 4 from executing the maintenance decree, have filed a suit for declaration and possession. They have contended that the appellant had the knowledge of the above suits and decrees and she has also acquiesced. Therefore, she is estopped from bringing the present suit.
( 6 ) THE trial Court has framed the following issues for determination and gave its findings as follows :" (1) Does plaintiff prove that the suit schedule properties belonging to her father Chinnegowda and that by virtue of a register Will dt. 6-4-1925 executed by the said Chinnegowda and after h
