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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
ARAVIND KUMAR, J.
Veerabhadrayya S/o Gurupadayya Nandayyagol & Ors. – Appellants
Vs.
MytraBai W/o Rachayya Mallikarjunmath – Respondent
Regular Second Appeal No.200068 of 2014
Decided On : 14-03-2017
CODE OF CIVIL PROCEDURE, 1908 – Order 7, Rule 11(b)(c) & Rule 13 – Previous plaint was unnumbered – Office objection as to deficiency of Court-fee – No time was fixed by Court for payment of deficit Court-fee – Rejection of plaint for non-payment of Court-fee – Plaintiff is not precluded from filing fresh suit on same cause of action.
INDIAN EVIDENCE ACT, 1872 – Sections 68 & 71 – Proof of execution of Will – Evidence of scribe as to preparing to the instruction of Testator, reading and explaining to Testator and she approving it – Defendants admitting their thumb impressions – No allegations as to fraud or mental or physical in capacity – Evidence of Sub-Registrar and identifying witness – Courts below taking recourse to Section 71 of Evidence Act held that Will is proved – Held, there is no error.
INDIAN REGISTRATION ACT, 1908 – Section 73(i) – Admission of contents of document – Certificate of Registering Officer – A bare reading of sub-rule (i) of Rule 73 would indicate that execution could be duly admitted by the Registering Officer in case of executants who are unable to read the document, the contents of it is to be read out and if necessary explained to them and if the document is in a language which they do not understand, it must be interpreted to them. Nowhere the rule mandates that a certificate is to be appended or enclosed to said document certifying that contents of document is read-out or explained the contents of it or the interpretation of the contents of the document so made to the executant. In the absence of any statutory obligation cast on the Sub-Registrar, it cannot be gainsaid that on account of such non-certification by the Sub-Registrar the document is to be viewed suspiciously. In the absence of any statutory obligation cast on the Registering Officer, he is under no obligation to certify to the said effect in the document.
INDIAN SUCCESSION ACT, 1925 – Section 63 – Attestation of Will – To attest is to bear witness to a fact which means signing of the document to certify the attestation and his witness to the execution of the document. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document and after receiving the personal acknowledgment from the executant as regards the execution of the document. The essential conditions of a valid attestation are that two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement and each of them had signed the instrument in the presence of the executant to bear witness to the fact of execution. In other words, it is essential that the attesting witness has put his/her signature or mark namely animus testandi for the purpose of attesting the signature of the executor/executrix. The essential ingredients of the proof of attestation is necessary and the person relying upon the her thumb impression before the attesting witnesses and the attesting witnesses have signed said document in the presence of the executant. Further, mere attestation does not effect an admission of contents; attestation by itself does not attribute with knowledge of the contents of the document to an attesting witness; attestation does not itself imply consent.
INDIAN SUCCESSION ACT, 1925 – Section 63 – Proof of execution of Will – Evidence of scribe as to preparing to the instruction of Testator, reading and explaining to Testator and she approving it – Defendants admitting their thumb impressions – No allegations as to fraud or mental or physical in capacity – Evidence of Sub-Registrar and identifying witness – Courts below taking recourse to Section 71 of Evidence Act held that Will is proved – Held, there is no error.
This appeal has been admitted on 20.06.2014 to adjudicate the following substantial questions of law:
(1) Whether the suit of the plaintiff was not maintainable in view of dismissal of her earlier suit for non-prosecution?
(2) Whether the will in question was not proved in accordance with law?
(3) Whether the lower Appellate Courts finding was perverse in ignoring the revenue entries in the name of appellants herein?”
BRIEF BACKGROUND:
2. One Sri Danayya Math had three children namely, Sri. Gurulingayya Math, Sri.Sidramayya Math and Smt. Bhagirathi Bai. The above said Sri. Gurulingayya Math was married to Smt. Gangabai. Smt. Gangabai had four brothers – Sriyuths Rachayya, Sanganbasayya, Gurupadayya and Girimallayya. The sister of said Sri. Gurulingayya Math – Smt. Bhagirathi Bai filed a suit O.S.No.71/1985 against her brother Sri.Sidramayya and Smt. Gangabai wife of deceased – Sri.Gurulingayya Math for partition and separate possession of her share in the properties left by her father Sri. Danayya Math. Said suit came to be decreed on 27.06.1991 and appeal filed against said judgment and decree came to be dismissed on 12.11.1992 and in the final decree proceedings i.e., FDP No.21/1995, 6 acres was allotted or given to Sri. Sidramayya. Smt.Gangabai got 17 acres 28 guntas. Said final decree proceedings came to be closed on 29.07.2004 as not pressed.
3. Plaintiff Smt. Mytrabai is the wife of Rachayya Mallikarjun Math (who is the brother of Smt. Gangabai). First defendant is the younger sister of late Gurulingayya Math. Second defendant is the son of Gurupadayya (who was another brother of Smt. Gangabai). Third defendant is the mother of second defendant and wife of Gurupadayya.
4. Plaintiff filed the suit in question namely O.S.No.56/2005 for declaring that she is the absolute and exclusive owner in possession of the landed properties bearing R.S.No.429/1 measuring 9 acres 8 guntas, R.S.No.1070/1 measuring 17 acres 28 guntas and house property bearing CPC No.505 situated at Kakhandaki Village, Bijapur District, contending interalia that Smt. Gangabai namely, her husband’s elder sister had executed a Will on 30.01.1997 in her favour and as such claiming testamentary succession she filed the suit initially against first defendant only. Thereafter defendants 2 and 3 also came to be impleaded since they claimed right over the property by virtue of the revenue entries found in the Record of Rights. Trial Court, by order dated 28.10.2005 had allowed the said application for impleading and accordingly they were impleaded as defendants 2 and 3. First defendant though served with summons, did not contest and no written statement was filed. Second defendant filed written statement denying the averments made in the plaint. Will propounded by the plaintiff of Smt. Gangabai dated 30.01.1997 was denied and it was specifically contended in paragraph No.5 of the written statement that thumb impression of Sri Jagannath and signature of Sri Mallappa had been obtained by plaintiff on a blank stamp paper in connection with loan transaction of Rs. 10,000/- borrowed by Smt. Gangabai from Sri Jagannath in respect of one of the items of the suit property namely R.S.No.1070 and it was also contended that said two persons Sriyuths Jagannath and Mallappa had denied the execution of the Will by filing their respective affidavits and contending that plaintiff obtained their respective thumb impressions and signatures on blank stamp paper in connection with loan transaction between Sri. Jagannath and Smt. Gangabai and plaintiff has created a false document styling the same as Will alleged to have been executed by deceased Gangabai. Hence, plaintiff was put to strict proof of execution and attestation of the Will alleged to have been executed by Smt. Gangabai in favour of plaintiff. Third defendant filed a memo on 12.12.2005 indicating there under that written statement filed by second defendant may be treated as her written statement also.
5. Trial Court on
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