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2012 Supreme(Kar) 524
High Court of Karnataka
N. KUMAR, J.
Ramakrishnappa & Others
Versus
Rudramma & Another
Regular Second Appeal No. 579 of 2006 (DEC)
Decided On : 27-09-2012
For the Appellants :B.M. Siddappa, H. Kotrabasappa, D.K. Madhusudhana, Advocates.
For the Respondents:R1, R.G. Hegde, R2, T. Basavaraj, Advocates.
Headnote:HINDU LAW -Suit for partition: [N. Kumar, J] Plaintiff, only daughter of one brother - Defendants 1 to 3 are the sons and daughter of another brother - Jewellery etc., and some items of the properties were given at the time of marriage - Under a registered Will plaintiff’s father bequeathed his half share in favour of defendants-Also alleged that plaintiff agreed to sell defendants one item of property given to her, but defaulted - Ultimately trial Court held that the plaintiff is not entitled to any share - Lower Appellate Court reversed the Judgment and Decree of trial Court and allowed the appeal - Second Appeal - Held, Lower Appellate Court has appreciated the evidence on record and by reasoned order, has shown how the Trial Court was not justified in recording the finding that the Will is proved and it has recorded a finding that the Will is not proved. There is no justification to interfere with the findings of lower appellate court. Second appeal dismissed.
INDIAN EVIDENCE ACT, 1872 - Section 68: [N. Kumar, J] Proof of Will - Scribe and one of the attesting witness were examined - Held, That by itself will not prove the due execution of the Will. In order to prove the Will, the propounder of the Will has to prove that on the date of the execution of the Will, the executant was in a sound state of mind. Further, if there are any suspicious circumstances surrounding the execution of the Will, it is his duty to dispel all the suspicious circumstances. If these two material factors are not established, notwithstanding the fact that the requirement of Section 68 has been complied with, it cannot be said that the Will is proved. Mere examining of an attesting witness and the scribe would not prove the due execution of the Will. Similarly, because the Will is registered, no weight could be given to it. A will is not a compulsory registrable document.
08.12.99 Passed In O.S.No.216/97 on the file of the Prl. Civil Judge (Jr.Dn), Chitradurga.)
1. This is the defendants' second appeal against the judgment and decree of the lower Appellate Court, which has decreed the suit of the plaintiffs' for partition and separate possession and for legitimate share in the suit schedule property after setting aside the decree of the Trial Court, which has dismissed the suit.
2. For the purpose of convenience, the parties are referred to, as they are referred to in the plaint.
3. The subject matter of the suit is, six items of the agricultural land and one item of house property situate at Kasaba Hobli, Chitradurga Taluk (for short, hereinafter referred to as 'the suit property').
One Gallappa is the Prospietus. He has two sons by name Kariyappa and Sanna Chikkappa. Kariyappa was married and the plaintiff is his only daughter. Sanna Chikkappa was also married and having two sons, namely, Ramakrishnappa and Pathalingappa and a daughter by name Jayamma. They are defendant Nos. 1 to 3 in the suit. All the suit properties belong to Gallappa. On his death, he left behind his two sons Kariyappa and Sanna Chikkappa. Originally, the mutation entries in respect of all the properties were standing in the name of Gallappa. After his death, when his two sons inherited the said property, khatha was made out in their joint names. The plaintiff is married and she is living with her husband at Holalkere Road, Chitradurga. After his father's death, Sanna Chikkappa continued to cultivate the schedule property along with his children. Plaintiff is in joint possession and enjoyment of the suit schedule property. When the plaintiff got cultivated the schedule property with the help of her husband, then the defendants made an attempt to dis-possess the plaintiff from the suit property. Thereafter, she made enquiries and came to know that, defendant Nos.1 and 3 have got their names mutated in respect of the suit properties. She also came to know that they have sold the land bearing Sy.No.24/p to defendant No.4 by name, Sannappa without family necessity and hence, the sale is not binding on her. Therefore, she filed a suit for declaration that she is entitled to half share in the suit properties and for partition and separate possession of her half share and to declare that the sale deed executed by the defendants in favour of Sannappa is not binding on her.
4. After service of summons, defendant Nos.1 to 3 filed a joint written statement. They did not dispute the relationship with the parties. They admitted the death of the plaintiff's father and mother. After denying all the allegations in the plaint, they specifically contended that the plaintiff was married during the lifetime of her father Karriyappa and Sanna Chikkappa. At that time, all of them were living together. Whatever there was due to plaintiff had been paid to her at the time of her marriage, i.e., gold ornaments like gold necklaces worth 50 grams, gold bendole worth 20 grams and two buffaloes worth Rs.6,000/-. Sometime after her marriage, she was allotted with three mango trees giving her the right to take and pluck mango fruits from the said trees. A black tiled roofed house was also given to her. This was for her benefit. The plaintiff and her husband have been residing in Chitradurga City. Her husband is a Coconut Merchant. The plaintiff never lived after her marriage in Tegaranahatti Village. She has not cultivated the suit schedule lands at any material point of time.
5. That on 18.06.1986, the father of plaintiff has executed a registered Will in respect of his half share in the joint family properties in favour of defendant Nos.1 to 3 for the reasons narrated therein. The recitals made in the said Will disclose the intention of the testator Kariyappa. The father of plaintiff expired about few years back. Consequent upon his death, the registered Will dated 18.06.1986 came into force. By virtue of the said Will, the defendant Nos
