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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
A.V. CHANDRASHEKARA, J.
Chennappa Gowda & Ors. - Appellants
Vs.
N.C. Rajashekara & Ors. - Respondents
R.S.A. No. 1952/2005 C/W R.S.A. No. 220/2006
Decided On : 18-03-2016
CODE OF CIVIL PROCEDURE, 1908 - Order 7, Rule 11(d): [A.V. Chandrashekara, J] Rejection of plaint - Suit in respect of agricultural land - Certified copy of mutation record or index of land relevant to agricultural land, should be produced by plaintiff annexed with suit - If fails to do so within time, plaint will have to be rejected.
INDIAN SUCCESSION ACT, 1925 - Section 63: [A.V. Chandrashekara, J] Will - Genuineness of - Testator bequeathing property to his two brothers by Will, excluding his natural heir i.e. wife and only son - Allegation that character of wife was suspicious but not examined any witness to prove such allegation, as well as executant had no grudge against son, hence his exclusion found doubtful - Held, Will cannot be said as genuine.
INDIAN SUCCESSION ACT, 1925 - Section 63 & Evidence Act (1 of 1872), Section 104: [A.V. Chandrashekara, J] Burden of proof - Whenever execution of Will is denied, burden is always on propounder to ward off all suspicious circumstances surrounding Will.
INDIAN SUCCESSION ACT, 1925 - Section 63: [A.V. Chandrashekara, J] Execution of Will - One of attesting witnesses at least must be examined to prove genuineness of Will - Evidence of scribe cannot be equated with evidence of attester to Will however strong it may be.
INDIAN SUCCESSION ACT, 1925 - Section 63: [A.V. Chandrashekara, J] Contents of Will - Contents of testamentary document will have to be appreciated in context of circumstances and not vis-a-vis rules for intestate succession - Court examines nature of bequest only for limited purpose.
Both these appeals filed under Section 100, CPC are directed against the judgment and decree passed in O.S. 251/09 which is pending on the file of Civil Judge (Junior Divn.), Channarayapatna, and the judgment passed by the Civil Judge (Senior Divn.), in R.A. 12/02.
2. The appellant in R.S.A. 1952/05 Channappa Gowda was the third defendant in the suit filed by N.C. Rajashekara for the reliefs if declaration of title and permanent injunction in respect of 50% of the land measuring 6.10 acres in Survey No. 15 (new No. 32) of Begur Hobli, Nagenahalli village, Channarayapatna Taluk. Plaintiff had a brother by name N.C. Guruvaiah and both of them were brothers of one person named N.C. Chandrappa who was an ex-serviceman. Chandramma is the wife of Chandrappa and Umesh is the son born to them.
3. Government had granted 6.10 acres of land to N.C. Chandrappa and he was in possession of the same till his death. According to the plaintiff, his brother had executed a will in favour of himself and his brother-Guruvaiah on 15.4.1972 bequeathing the entire extent of 6.10 acres. Chandrappa died in 1984. Soon after his death, himself (plaintiff) and his brother became the joint owners of the schedule property. With these averments he chose to file the suit against Chandramma, wife of Chandrappa, Umesh (son of Chandrappa) and Channappa Gowda purchaser of the entire extent of land from Chandramma and Umesh and the legal heirs of Guruvaiah, joint legatee.
4. One of the legatees i.e. Mr. Rajashekara filed a suit requesting the court to declare that he is entitled for half share by virtue of the registered will dated 15.4.1972 and for mesne profits of Rs.10,000/-. The said suit was contested by the third defendant-Channppa Gowda denying all the material averments, but admitting the fact that schedule property in question originally belonged to Chandrappa and after his death, to his legal heirs-Chandramma and Umesh who in turn sold the same to him registered sale deed dated 3.8.1988. It is his case that he is in lawful possession and enjoyment of the suit property, having acquired the same from Chandramma and Umesh who were the absolute owners in possession of the suit property, having inherited from Sri Chandrappa.
5. Chandramma and Umesh had filed written statement sailing along with the third defendant. All of the requested the court to dismiss the suit.
6. On the basis of the pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that suit schedule property is the self acquired property of the late N.C. Chandrappa?
2. Whether the plaintiff proves that late N.C. Chandrappa executed a will infavour of him and 4th defendants husband?
3. Whether the plaintiff is entitled for half share in suit schedule property?
4. Whether the 3rd defendant proves that 1st and 2nd defendants are the absolute owners of the suit schedule property?
5. Whether the 3rd defendant proves the alleged will is concocted?
6. What Order or decree?
Sole plaintiff-Rajashekara is examined as PW2 and Kodandaramaiah who is stated to be the scribe of the will marked as ex.P1, is examined as PW2. The purchaser of the property Channappa Gowda is examined as DW1 and Umesh is examined as DW2. 19 exhibits have been got marked on behalf of the plaintiff and 3 exhibits are got marked on behalf of the defendants. Ultimately the suit came to be dismissed vide judgment dated 12.4.2000 answering issue nos. 2 and 3 in the negative and issue nos. 1 and 4 in the affirmative.
7. Against the said judgment and decree, the unsuccessful plaintiff-Rajashekara, one of the legatees to the will, chose to file an appeal in terms of Section 96, C.P.C. before the court of Civil Judge (Senior Divn.), Channarayapatna. The said appeal is allowed and the judgment of the trial court is set aside and he is declared to be the owner to the extent of 50%, with a direction to the trial court to effect partition and separate possession of 50%. Being aggrieved by the said judgment and decree,
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