Back
2011 Supreme(Kar) 1024
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Mohan Shantanagoudar and K. Govindarajulu, JJ.
S.K. Shyamaraju —Appellant
Vs.
Subramani —Respondent
R.F.A. No. 395 of 2008 (DEC)
Decided on : 08-08-2011
Advocate Appeared:
Mr. Krishnappa Reddy, For the Appellant
Mr. M.S. Nagraj, For the Respondent
The judgment emphasizes the importance of credible evidence in proving the validity of Wills and the determination of property ownership.
Headnote:
Will - Property Dispute - 1. Whether the Court below is justified in concluding that the suit schedule property is the self-acquired property of Shri Adi Krishnaiah Shetty? 2. Whether the Court below is justified in disbelieving Ex. P5 - Will dated 4.2.1994 and Ex. D1 - Will dated 10.4.1995?
Fact of the Case:
The plaintiff filed a suit for declaration and injunction in respect of the suit schedule property, claiming it was bequeathed to him through a Will dated 4.2.1994. The defendant contested, claiming that another Will dated 10.4.1995 revoked the earlier Will and bequeathed the property to him.
Finding of the Court:
The trial Court dismissed the suit, holding that both Wills relied upon by the parties are unreliable. The appellate Court upheld the dismissal, disagreeing with the trial Court's conclusion on the self-acquired property issue but finding no ground to interfere with the dismissal of the suit.
Issues: The issues revolved around the ownership of the property, the validity of the Wills, and the entitlement to possession and mesne profits.
Ratio Decidendi: The property was found to be joint family property, not self-acquired, based on the lack of evidence of separate income and the family's joint status. The Court disbelieved the Wills due to suspicious circumstances, including unreliable witnesses and contradictory evidence.
Final Decision: The appeal was dismissed, affirming the trial Court's dismissal of the suit.
MOHAN SHANTANAGOUDAR, J.—This appeal is filed by the unsuccessful plaintiff against the Judgment and decree passed in O.S. No. 9826/1998 by 14th Additional City Civil Judge (CCH-28). The parties will be referred as per the ranking before the trial Court:
2. Shri Adi Krishnaiah Shetty is the father of the plaintiff and defendant. Adi Krishnaiah Shetty has got three sons and two daughters including the plaintiff and defendant. The name of the first son is S.K. Satyanarayana. He is not a party to the suit. The second son of Adi Krishnaiah Shetty is Mr. Shamaraju (plaintiff), Mr. Subramani (defendant) is third son.
The case of the plaintiff is that his father Adi Krishnaiah Shetty executed a Will(Ex. P5) on 4.2.1994 which came to be registered bequeathing the suit schedule property. The executant of the Will-father of the parties expired In the year 1996 thereafter, plaintiff started enjoying the property as his own. Since the defendant; started denying the title of the plaintiff, he filed the present suit for declaration and injunction in respect of the suit schedule property.
The case of the defendant is that his father did not execute the Will in favour of the plaintiff, as alleged by the plaintiff. The defendant himself has contributed major portion of the amount for the purposes of purchasing the suit property since the date of purchase, the defendant alone is living in the property in question; alleged Will Ex. P5 dated 4.2.1994 was got registered by the plaintiff fraudulently; that executant of the Will executed another Will as per Ex. D.1 dated 10.4.1995 in favour of the defendant. Hence, the defendant alone is the owner of the property.
3. In view of the respective pleadings, the following issues were framed by the trial Court:
“1. Whether the plaintiff proves that the suit schedule property was the self acquired property of his father?
2. Whether the plaintiff proves that his father suit schedule property In favour of plaintiff under a Will dated 4.2.1994?
3. Whether plaintiff proves that; he acquired right of ownership of suit schedule property through the said Will dated 4.2.1994?
4. Whether plaintiff proves that he is entitled for possession of the suit schedule property?
5. Whether plaintiff proves that he is entitled for mense profits?
6. Whether defendant proves that court-fee and is not sufficient?
7. What order or decree?
Additional issue framed on 5.8.2005:
1. Whether defendant proves that his father has executed Will dated 10.04.1995 bequeathing the suit schedule property in his favour by canceling the earlier will dated 04.02.1994?”
In order to prove his case, the plaintiff himself examined as P.W. 1 and examined attestor of the Will. Three documents were got marked on behalf of the plaintiff. Defendant examined himself as D.W. 1 and examined D.W.2 who is the attestor of Ex. D1. He got marked ten exhibits. Based on the material on record, the trial Court dismissed the suit holding that both the Wills relied upon by the parties are unreliable. Against the said Judgment, this appeal is filed by the plaintiff.
4. Learned Advocate for the appellant/plaintiff submits that the attestor of the Will-P.W.2 has clearlydeposed that he went to the house of the executant on the invitation of the executant and thereafter, the Will was prepared by an Advocate. Both the attestors put their signatures in the presence of the executant and thereafter, all of them went to Sub-Registrar’s office for the purposes of getting the Will - Ex. P5 registered. According to the plaintiffs Counsel, since the Will -Ex. P5 is duly proved in accordance with law, as there are no suspicious circumstances surrounding the Will -Ex. P5, the trial Court is not justified in dismissing the suit.
The learned Advocate for the respondent - defendant opposes the appeal by submitting that the trial Court is justified in concluding that Will - Ex. PS is surrounded with suspicious circumstances and thus, the -same is unreliable; that the evidence of P.W.2 is totally
