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2007 Supreme(Kar) 192
2008 (1) KLO 59
IN THE HIGH COURT OF KARNATAKA
N. Kumar, J.
RSA No. 1810 of 2005
S. Jagadish - Appellant
Vs.
Dr. S. Kumaraswamy and Others - Respondents
Decided on 20-3-2007
Appellant: Sri Yoganarasimha, Senior Counsel for Ms Deepashree Adv.
Respondent: Sri S.K. Manjunath for M/s Hegde Associates,Sri C.P. Dayananda, Adv.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 100: [N. Kumar, J] Regular Second Appeal - Concurrent findings - Misreading of documentary and oral evidence on record - Complete ignorance of legal position -Perverse and capricious finding contrary to the material on record - Held, Such a concurrent finding of both the Courts below is a concurrent error and High Court has jurisdiction to interfere with such concurrent finding of fact, and it is the duty of the High Court to interfere in such finding in order to prevent miscarriage of justice. On facts, held, the concurrent findings recorded by the Courts below that Deed of cancellation of Will, is duly executed cannot be sustained and consequently it is liable to be set aside.
INDIAN SUCCESSION ACT, 1925 - Sections 63 & 70: [N. Kumar, J] Revocation of Will - Held, If the revocation is by some writing declaring an intention to revoke the Will, the said writing should be executed in the manner in which an unprivileged Will requires to be executed as contemplated under Section 63 of the Act. Further, The deed of revocation also should be duly signed by the testator, with the intention to cancel the Will and it shall be duly attested by two or more witnesses. The testator should be in a sound state of mind at the time of execution of the deed of revocation. The propounder of the said deed of revocation, should dispel all the suspicious circumstances surrounding the execution of such writing. Only then the said deed of revocation of Will has the effect of revoking a duly executed Will. On facts, held, Plaintiff’s evidence shows that before death, the testator was in a State of Coma. The evidence on record do not prove due execution of deed of cancellation as required under Section 63 of the Act. The Courts below without proper application of mind have misread the evidence on record, ignored the material evidence on record and not kept in mind the provisions of Section 70 and Section 63 of the Act which warrants the standard of proof that it is required for due execution of Deed of Cancellation.
N. Kumar,J
This is the 4th defendant’s second appeal against the decree for Partition and separate possession. For the purpose of convenience, the Parties to this appeal are referred to as they are referred to in the suit.
2. The plaintiff-Dr.S.Kumaraswamy, the 1st defendant S. Gurudatt, the 4th defendant-S. Jagadish are the three sons of late Sri. H. Siddalingaiah. 2nd defendant - Smt. Nagarathna and 3rd defendant Smt. Umadevi are his daughters. The plaintiff and defendants 1 to 3 died during the pendency of the proceedings and their legal representatives have been brought on record.
3. The case of the plaintiff is, his father late Sri.M.Siddalingaiah had no ancestral nucleus and he acquired the suit schedule property from his personal income as he was the former Registrar of the Karnataka University. He died on 13.8.1980 at Mysore. After the death of Sri.M.Siddalingaiah, plaintiff and defendants 1 to 4 became the tenants in common each getting 1/5th share in the property. Properties however continued to be in joint possession and enjoyment of the said heirs. The ground floor of the plaint schedule property is rented to the 5th defendant-Bank for Rs.450/- p.m. There were misunder-standings between the plaintiff and the 4th defendant. Even otherwise the brothers thought of effecting partition by metes and bounds. The 4th defendant was not agreeable. Therefore, a legal notice was issued to him. When he did not accede to the request made, the present suit is filed for partition and separate possession.
4. The plaint was got amended by introducing paragraph 3(a) to raise a plea that since late Siddalingaiah was a co-obligant to the loan taken by 4th defendant’s wife-Smt. Shanthakumari with the 5th defendant-Bank and the documents are given to the 5th defendant Bank, the plaintiff, defendants 1 to 4 are not liable to the loan raised by the 4th defendant’s wife.
5. The 4th defendant-the contesting defendant filed written statement. He did not dispute the relationship between the parties, the leasing of the property to the Bank, issuance of legal notice, and the reply. His specific case was his father wrote his last Will in his own hand writing on 12.10.1978 and got it registered in the Sub Registrar’s office bequeathing the suit schedule property in his favour. After the death of his father on 13-8-1980 he has become the absolute owner in possession of the suit schedule property. Neither the plaintiff nor the other defendants i.e. 1 to 3 have any right, title or interest over the said property. The 5th defendant also filed written statement. They contended that the defendant-Bank is an unnecessary party to the proceedings as no relief is sought against them and they also referred to the loan borrowed by 4th defendant’s wife and Late Siddalingaiah being the co-obligant. The 1st defendant filed separate written statement conceding for a decree as prayed for by the plaintiff. He also stated in the written statement that around 12.10.1978 when his father was residing with the 4th defendant, 4th defendant came to him with a document claiming to have been executed by their father and reported to him that it was a Will executed by his father and he has sent him to get attestation for it. He without going through the same put his signature. He called upon the 4th defendant to prove the Will set up by him. He also stated that the late Siddalingaiah has cancelled the Will by executing the registered cancellation deed and therefore, the suit property is liable to be divided among his children. Defendant Nos.2 and 3 did not contest the claim by filing any written statement. The plaintiff filed a reply denying the existence of the execution of the will referred to by the 4th defendant as one executed by a person out of his own free will without any pressure. Further, he says it was because of the circumstances, late Siddalingaiah wrote out subsequent Will dated 28.5.1980 again a registered Will cancelling the first Will.
6. On the abov
