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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Mr. Sreenivasmurthy, S/o. Late Mr. Venkatappa – Appellant
Versus
Ms. Lakshmamma w/o. Omkara murthy – Respondent
R.S.A. No.697 of 2018 (PAR)
Decided on : 23-05-2023
Indian Evidence Act, 1872 - Section 68, 69 - Transfer of Property Act, 1882 - Section 3 - Hindu Undivided joint family - Suit of partition – Will - Second appeal is filed by defendant No.2 challenging judgment and decree passed questioning granting of share in favour of plaintiffs in suit schedule properties – Genuineness of execution of Will is doubtful and there are suspicious circumstances and burden lies on defendant No.2, who propounded Will to remove all suspicious circumstances - Para 34.
Finding of the Court: Executant was having two sons and out of which, first son was not having male issues and first son passed away and he left his wife though, his wife and two daughters were alive - Apart from that, alleged Will was executed in favour of defendant No.2 and by that time, defendant No.1 and also sister and brother were also alive and what made to execute Will in favour of defendant No.2 has not been properly explained and very disinheritance of property excluding other members of family also gives room for suspicious circumstance and these are factors, which have been taken note by Trial Court as well as First Appellate Court and this judgment is aptly applicable to case on hand - In case on hand, though examined some of witnesses, they failed to prove Will in terms of Section 69 of Evidence Act - Hence, Court do not find any merit in appeal to reverse concurrent findings of Trial Court as well as First Appellate Court.
Result: Appeal dismissed.
JUDGMENT :
This second appeal is filed by defendant No.2 challenging the judgment and decree passed in O.S.No.98/2009 dated 27.11.2015 and judgment and decree passed in R.A.No.14/2016 dated 29.11.2017 questioning granting of share in favour of the plaintiffs in the suit schedule properties.
2. The factual matrix of the case of the plaintiffs before the Trial Court is that, one Sri Lakkanna of L.H. Palya had two sons through his wife Lakshmamma and the first son by name Kamanna is no more. The plaintiff Nos.1 and 2 are the daughters of said Kamanna and defendant No.5 is the mother of plaintiff Nos.1 and 2. Since, the defendant No.5 is not in good terms with the plaintiffs and acting detrimental to the interest of the plaintiff, she is arrayed as defendant No.5 in the suit. The defendant No.1 is the wife of late Venkatappa, the defendant Nos.2 and 3 are the sons and defendant No.4 is the daughter of late Venkatappa. The plaintiffs and defendants constitute Hindu Undivided joint family. The suit properties are the joint family properties of the plaintiffs and defendants and they are in joint possession and enjoyment of the same. The father and uncle of the plaintiffs are no more. As such, the defendant No.2 being the eldest male member in the family of the defendants, has got changed the khatha of suit properties into his name behind the back of the plaintiffs, in order to knock off the valuable properties and to deprive the plaintiffs from getting their legitimate share in the suit properties. It is contended that the alleged Will dated 08.06.1993 executed by Lakkanna @ Lakkashetty in favour of defendant No.2 is created and concocted by the defendant Nos.1 to 3 for the purpose of this suit and to deprive the plaintiffs from their legitimate share in the suit properties and it does not binds the plaintiffs’ share in the suit properties. It is contended that the plaintiffs demanded the defendants to partition the suit properties and to allot their legitimate share but, the defendants refused to allot the share. Hence, without any other alternative, filed the suit seeking the relief of partition.
3. In pursuance of the suit summons, the defendant Nos.1 to 3 appeared before the Court through their counsel and defendant Nos.1 and 2 filed their written statement. The defendant No.3 filed a memo adopting the written statement of defendant Nos.1 and 2. The defendant No.4 has not appeared before the Court and hence, placed exparte. Though the defendant No.5 has appeared before the Court, he has not filed any written statement, inspite of sufficient opportunity being given. Hence, written statement of defendant No.5 is taken as nil.
4. The defendant Nos.1 to 3 filed the written statement admitting the relationship between the parties. But, they denied the fact that the plaintiffs and defendants constitute Hindu Undivided joint family and the suit properties are joint family properties of parties to the suit and they are in joint possession and enjoyment of the same. The defendant Nos.1 to 3 admitted the fact that the father of the plaintiffs and their uncle are no more. It is contended that item No.1 of the suit schedule properties is an agricultural land and the same originally belongs to the Government and the same was enjoyed by the grandfather of the plaintiffs and defendant Nos.2 to 4 by name Lakkanna and he was also called as Lakkanna @ Lakkappa @ Lakkashetty. During his lifetime, he was unauthorisedly cultivating the suit item No.1 land and the same was regularized and granted by the Government to him. Since then, he is the absolute owner in possession of suit item No.1 property and the same his self-acquired property. During his life time, when he was in sound state of mind, he executed a registered Will dated 08.06.1993 in favour of defendant No.2. The said Will came into operation on 02.10.1995 when the said Lakkanna died. Since then, the defendant No.2 and his father were in possession and enjoyment of suit item No.1 of the propert
Sections 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.
The propounder of a Will must prove its execution and attestation in accordance with law, and any suspicious circumstances surrounding the Will must be dispelled for it to be considered valid.
The main legal point established in the judgment is the requirement to prove the execution of a Will in accordance with the provisions of the Indian Succession Act and the Indian Evidence Act, and th....
The burden of proof for the validity of a Will lies with the propounders, who must meet legal requirements, including examining attesting witnesses, especially in the presence of suspicious circumsta....
Secondary evidence – Neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done ....
The court emphasized that the burden of proof lies on the propounder of a Will, especially when suspicious circumstances exist, necessitating clear evidence of its validity.
The duty of the propounder to dispel suspicion surrounding the execution of a Will and the requirement to remove all legitimate suspicions before accepting the Will as the last will of the testator.
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