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2019 Supreme(Kar) 2070
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
G. NARENDAR, B.M. SHYAM PRASAD, JJ.
Amita – Appellant
Versus
Arvind – Respondent
Regular First Appeal No. 100166 of 2015
Decided On : 30-08-2019
Advocate Appeared:
Anant Mandagi, Chidanand, M.G. Naganuri, Sangram S. Kulkarni.
Headnote:
Indian Succession Act, 1925 - Section 276 - Civil Procedure Code,1908 - Section 151 - Indian Evidence Act - Sections 68, 63 , 70 and 82 - Registration Act - Sections 58 and 59 - Transfer of Property Act, 1872 - Section 3 - Declaration of title to property - Seeking permission to produce the Will - Whether the appellant was able to prove due execution and registration of the Will - Whether had any bequeathable interest in the properties bequeathed under the Will - Whether or not the testator data executed the testamentary instrument of his free will - Whether a Will was duly executed and attested, must satisfy itself, having regard to the totality of the circumstances - Whether the instrument propounded as the last Will of the deceased is or is not executed by the testator - Whether civil Court in the present proceedings could have held that Ms Gulab Sripad Deshpande had no be queathable interest in the properties for her to have executed the Will - Whether court below was right in not appreciating the evidentiary value and binding effect of the order passed on I.A.XX filed - Whether the appellant is unable to establish the due execution and attestation of the Will as required under section 68 of the Indian Succession Act, 1925 - Whether finding by the civil Court that the appellant has not established the due execution of the Will is based on proper appreciation of the evidence on record - Whether the appellant is not entitled for probate of the Will - Whether the appellant is entitled for grant of probate of this Will - Appellant filed a petition under section 276 of the Indian Succession Act, 1925 for grant of Probate Certificate in respect of Will executed stating that this Will was produced in a civil suit proceeding initiated for partition and declaration as detailed later on in this judgment - Respondent Nos.1 to 4 did not contest the petition. However, the respondent came on record and chose to contest the petition. Therefore, the petition was registered as a suit - appellant's case is that is her father's sister - Her father died in the year 1974. The appellant, her brother and sisters were educated by her aunt was not only residing in a part of the property bearing 1st Railway Gate – Held, civil Court has relied upon the evidence of PW-5, an official from the Sub- Registrar's Office, who appeared before the civil Court in response to summons issued on the appellant's application to produce the Registration Register - Civil Court could not have relied upon this evidence as regards certain differences in the left thumb impressions found in the registers of the year noticed by the civil Court - It is undisputed that this witness is not an expert in Dermatoglyphics, and neither civil Court could have undertaken such exercise in the light of the evidence on record - civil Court has overlooked material circumstances and relied upon extraneous circumstances to disbelieve the Will and consequently, refusing probate for Will - civil Court has been perverse in its appreciation of the material on record and totally erroneous in its conclusion due execution and attestation of the Will dated 24.1.2002 is not established - Question Nos.2, 3 and 4 are answered accordingly - Question No.5 is answered holding that the appellant would succeed and be entitled to the probate for the Will - Appeal is allowed
JUDGMENT :
B.M. SHYAM PRASAD, J.
1. This appeal is by the plaintiff in O.S. No.3/2010 on the file of the I Additional District Judge, Belagavi (for short, 'Civil Court', which is dismissed by the Civil Court by the impugned judgment. As such, this first appeal.
2. The appellant filed a petition under section 276 of the Indian Succession Act, 1925 for grant of Probate Certificate in respect of the Will dated 24.1.2002 (registered as Document No. BK-III-144/2001-2002) executed by Ms. Gulab Sripad Deshpande stating that this Will dated 24.1.2002 was produced in a civil suit in OS No.80/2000, a proceeding initiated by Ms. Gulab Sripad Deshpande for partition and declaration as detailed later on in this judgment. The respondent Nos.1 to 4 did not contest the petition. However, the respondent No. 5 to 7 came on record and chose to contest the petition. Therefore, the petition was registered as a suit in OS No. 3/2010, which is dismissed by the civil Court.
3. The appellant's case is that Ms Gulab Sripad Deshpande is her father's sister. Her father died in the year 1974. The appellant, her brother and sisters were educated by her aunt, Ms. Gulab Sripad Deshpande, who was not only residing in a part of the property bearing CTS No. 279, 1st Railway Gate, Tilakwadi, Belgaum but had also rented out other premises in this property. Ms Gulab Sripad Deshpande was afflicted with leprosy in her childhood, but she was cured entirely. However, Ms Gulab Sripad Deshpande remained a spinster and died on 6.1.2007.
4. The appellant's grandfather, Mr. Sripad Rao was married to Ms. Lakshmi Bai as well as the appellant's grandmother, Mrs. Chandrabhaga Bai. The appellant's grandmother, Chandrabhaga Bai had three children viz., the appellant's father Mr. Sham @ Gurunath Deshpande, Ms Gulab Sripad Deshpande and Mrs. Sindhu, who died also died a spinster. Therefore, the appellant's family and Ms Gulab Sripad Deshpande stayed together. The respondent no 1 to 4 are the appellant's mother and her siblings, and the other respondents are either her step brothers or their respective legal heirs. The Genealogy asserted by the appellant is as follows:
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5. The appellant has asserted that Ms Gulab Sripad Deshpande, who died on 6.1.2007, has executed and registered the Will dated 24.1.2002 (referred to as 'the Will dated 24.1.2002') bequeathing all her right, title and interest in the different immovable properties in her favour and in favour of her mother and siblings (the respondent Nos.1-4). The properties referred to in the Will dated 24.01.2002 are as follows:
(i) CTS No. 279, 1st Railway Gate, Tilakwadi, Belgaum.
(ii) CTS No. 433, Congress Road, Belgaum.
(iii) 17/A/1, Chidambar Nagar, Belgaum.
(iv) Plots in 17, Chidambar Nagar, Belgaum.
(v) Survey No. 55/1, Kangrali, Belgaum.
6. Initially, only the appellant's mother and her siblings were arrayed as parties. These respondents filed Memo dated 6.9.2007 stating that they had no objection for allowing the petition. However, on the publication of citation of the petition, the respondent Nos.6 to 7 (referred to as, 'the contesting respondents') filed their respective application/objections to come on record as respondents. The civil Court on 4.3.2008, allowed the application filed by these respondents, and they were permitted to come on record.
7. The contesting respondents resisted the grant of probate as prayed for by the appellant on multiple grounds. They contended that Ms. Gulab Sripad Deshpande suffered from leprosy from her childhood. Though she received treatment, she was not cured entirely. The affliction recurred in 1985, and she was under constant treatment, and sometimes as an inpatient in Bangalore. Ms Gulab Sripad Deshpande's fingers were affected and disfigured, and she could neither sign or affix her Left Thumb Mark (LTM). Ms Gulab Sripad Deshpande was neither physically nor mentally in a sound state of mind to execute the Will dated 24.1.2002.
8. The contesting respondents also contended that Ms Gulab Shripad
