Back
2009 Supreme(Kar) 124
High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Giddamma & Another
Versus
Venkatamma, (Dead by LRS) & Others
Regular Second Appeal No. 895 of 2007
Decided on : 16-02-2009
For the Appellants:Y.R. Sadasiva Reddy & Assts, Advocates.For the Respondents:R1, R4, B.N. Muralidhar, Advocate.
Headnote:INDIAN EVIDENCE ACT, 1872 - Sections 69 & 68: [A.N.Venugopala Gowda,J] Proof of execution of Will - Held, Where no attesting witness was found, handwriting of at least one attesting witnesses and signature of person executing alleged document required to be identified through such witnesses. Mere identification of handwriting or signature of scribe is not sufficient to prove execution of Will.
INDIAN EVIDENCE ACT, 1872 - Sections 67 to 69: [A.N.Venugopala Gowda, J] Proof of execution of the document-Mandatory requirement of Section 69 - Proof of a document where no attesting witness found -Held, Section 68 of the Act lays down the mode of proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined. Section 69 provides for proof of a document where no attesting witness is found. The provision of Section 69 contemplates that, the handwriting of atleast one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. The proof of handwriting and/or the signature of a scribe is not the stipulation under Section 69 of the Act. - On facts held, The evidence of DW.3, merely identifying the handwriting and also the signature of his father, the scribe of the Will is of no legal consequence and does not meet the stipulation under Section 69.
INDIAN SUCCESSION ACT, 1925 - Section 59 & 63: [A.N.Venugopala Gowda, J] Proof of execution of Will - Held, When the genuineness /execution of the Will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. Hence, to prove the execution of the Will, the examination of at least one attesting witness is necessary. However, though a Will, ordinarily must be proved, keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the Will and attestation can be considered in the relaxed manner by having recourse to the exceptions provided under Sections 69,70 & 71 of the Evidence Act. Mere identifying the handwriting of the testator and signature of the scribe of the Will is of no legal consequence in proof of Will and does not meet the stipulation under Section 69 of the Evidence Act. On facts held, the Will (Ex.D1) has neither been proved in terms of Section 68 nor Section 69 of the Evidence Act and hence, the Courts below are justified in holding that the defendants have failed to prove the due execution of Ex.D1 (Will) by late Narasamma.
Venugopala Gowda, J.
This appeal arises from a suit for partition brought against the appellants by the respondent and another in the Court of Principal Civil Judge (Sr. Dn.), Kolar. Defendants in the suit are the appellants and respondent (dead) represented by her legal representatives, was the 1st plaintiff For the sake of convenience, the parties will be referred to hereinafter, with reference to their rank in the suit.
2. The material facts in regard to the relationship of the parties, which are not in dispute are that, one Muniyappa and his wife Nasamma, who have died, have left behind three daughters namely, (1) Venkatamma (1st plaintiff) (2) Chinnamma (2nd plaintiff) and (3) Giddamma (1st defendant). Said Venkatamma and Chinnamma filed the suit for a decree of partition and separate possession of their 2/3rd share in the plaint schedule property against their sister Giddamma and her son B. Nanjappa, inter alia contending that, the second defendant is attempting to alienate the suit property without effecting partition and allotting the shares to them. Defendants in their written statement, disputed the right and claim of the plaintiffs inter alia contending that, the suit property belonged to Nasamma, who bequeathed the same in favour of the 2nd defendant under a will dated 10.11.1960 and after her death, the 2nd defendant became the owner and he is in possession and enjoyment of the same, in view of which, the suit for partition is not maintainable.
3. During the pendency of the suit, Chinnamma, the 2nd plaintiff passed away, her legal representatives were not brought on record and the suit as far as she was concerned, stood abated. On the basis of the pleadings, the learned Trial Judge framed issues. Plaintiffs examined PW- 1 and Exs.P1 to P3 were marked and the defendants examined DWs 1 to 3 and Exs.D1 to D10 were marked. The learned Trial Judge has held that, the defendants have failed to prove that Nasamma executed the will – Ex.D1, in respect of the suit land in favour of the 2nd defendant and consequently, the plaintiffs are having 2/3rd share and they are entitled to partition and separate possession of their 2/3rd share in the suit land.
4. As against the said decree, defendants preferred an appeal in the lower Appellate Court. Considering the record and the rival contentions, the lower Appellate Court raised the points for consideration and it held that, the defendants have failed to prove the execution of will – Ex.D1 and that the plaintiffs are entitled to a share. Taking into consideration, the abatement of the suit in so far as the 2nd plaintiff was concerned, the decree passed by the Trial Court was modified holding that, the plaintiffs together are entitled for half share and possession. The appeal was allowed in part, by modifying the Judgment and Decree passed by the Trial Court.
5. Against the Decree passed by the lower Appellate Court, this second appeal has been filed, inter alia contending that, the Courts below are not justified, in not properly considering the contention that the property in question belonged to Nasamma, who had validly executed the will bequeathing the same under Ex.D1 in favour of the 2nd defendant, consequent upon which, the suit for partition was not maintainable and the suit ought to have been dismissed. It has also been contended that, in view of the death of the attestors and the scribe, DW-3 who was the son of the scribe, having been examined and that he having identified the signature of the scribe and the handwriting on the document, the execution of Ex.D 1 has been proved and non consideration of the said material aspect by the Courts below in the proper perspective has resulted in the impugned Decrees being illegally passed and hence, interference is called for.
6. Sri.Y.R. Sadasiva Reddy, learned Advocate appearing for the appellants, by taking me through the impugned judgments of the Courts below, strenuously contended that, the will — Ex.D1 executed by N
