Back
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
KRISHNA S. DIXIT, RAMACHANDRA D. HUDDAR, JJ.
Mr. Shivananda Shenoy, S/o. Late K. Narayana Shenoy – Appellant
Versus
Mr. Nithyananda Shenoy, S/o. Late K. Narayana Shenoy and Anr. – Respondents
Regular First Appeal No.1228 Of 2009 (PAR)
Decided On : 24-07-2024
Will - Partition - Indian Evidence Act, Section 68; Indian Succession Act, Section 63 - The court emphasized the necessity of proving a Will's execution and attestation as per statutory requirements, affirming the trial court's acceptance of the Will based on credible witness testimony despite challenges regarding its authenticity.
Fact of the Case:
The plaintiff sought partition of inherited properties, claiming joint ownership with his siblings. The defendants contended that a valid Will executed by their deceased father allocated specific shares, which the plaintiff disputed, alleging the Will was fabricated.
Finding of the Court:
The court upheld the trial court's findings, confirming the Will's validity based on the testimony of attesting witnesses and the absence of credible evidence to support the plaintiff's claims of forgery.
Issues: Whether the execution and attestation of the Will were proven as required by law, and whether the plaintiff was entitled to a share in the properties.
Ratio Decidendi: The court reiterated that the burden of proof for a Will's validity lies with the propounder, and that credible witness testimony can outweigh expert opinions regarding signature authenticity.
Result: The appeal is dismissed, confirming the trial court's judgment.
JUDGMENT :
(Ramachandra D. Huddar, J.)
Appellant/plaintiff has challenged the judgment of dismissal of the suit in O.S.No.134/2006 (Old O.S. No.73/1999) dated 8th October 2009 passed by the Civil Judge (Sr.Dn.) and ACJM, Karkala.
2. The parties to this appeal are referred to as per their rank before the trial Court for the purpose of convenience.
3. That plaintiff filed a suit against defendants seeking relief of partition of 'A' schedule immovable property by dividing the same into three shares by metes and bounds and also deliver one such share to him and also directing the partition of 'B' schedule properties and to pay the plaintiff one share thereof.
4. The records of this appeal reveal that, initially the suit was filed in O.S.No.73/1999 on the file of Civil Judge (Sr.Dn.), Mangaluru, Dakshina Kannada. In view of the establishment of Civil Judge (Sr.Dn.) Court at Karkala, the said suit came to be transferred to the Jurisdictional Court and renumbered as O.S.No.134/2006.
5. According to the plaintiff, the first defendant is his brother and 2nd defendant is his sister. 'A' schedule property was a self acquired property of his father by name late K.Narayana Shenoy by way of grant of occupancy rights by the Land Tribunal. Likewise, 'B' and 'C' schedule properties are self-acquired properties of his father. It is plaintiff and defendants who succeed to the said schedule properties jointly and equally.
6. It is stated that, plaintiff was residing in the 'A' schedule property till 03.12.1992. Because of his employment, he shifted his residence to Mangaluru. The 1st defendant used to reside with his father in 'A' Schedule property. Defendant No.2 is his sister who is already married and residing in her matrimonial home. After demise of K.Narayana Shenoy, 1st defendant started to deal with the schedule properties left behind by their father. As the plaintiff did not wish to continue his joint status with defendants. Defendants have not co-operated for the same. The 1st defendant illegally tried to dispossess the plaintiff from the schedule property.
7. It is alleged that, without the knowledge and consent of the plaintiff, the 1st defendant has carried out lot of changes to the hind portion and the upper floor of the building situated in 'A' schedule property. He is also contemplating to let out the 1st floor in the 'A' schedule property to third parties. He is also running a furniture shop in a portion of Door No.12-8 situated in a suit schedule 'A' property. Therefore, plaintiff filed the present suit seeking partition.
8. Pursuant to the suit summons, both the defendants appeared before the trial Court. The 1st defendant resisted the suit of the plaintiff by filing the detailed written statement, whereas, the 2nd defendant has not filed any written statement. So far as the acquisition of the property by the father of the plaintiff and defendants from the Land Tribunal by way of occupancy rights, it is admitted. Status of the schedule properties as narrated in the plaint is admitted.
9. It is contended that, the 1st defendant has studied upto X Std. He started assisting his father in cycle repair business. His father used to repair and hire the cycles. Because of his old age, it was defendant No.1 who used to take care of the business of his father. This fact is known to the plaintiff. The plaintiff was well aware that, the father of the plaintiff and defendants Narayana Shenoy bequeathed the schedule properties by virtue of a WILL dated 4.1.1998 to all his children in sound disposing state of mind. A copy of the Will was forwarded to the plaintiff as desired by the father of the plaintiff. Even plaintiff requested to send the said copy of the Will to him and accordingly, it was sent to him on 06.10.1998.
10. It is contended that, by virtue of the said Will, item No.1 was given to the plaintiff and item no.2 was given to the 1st defendant. The 3rd item was bequeathed to the 2nd defendant. It is contended that, defendant requested the p
The court established that the validity of a Will must be proven through credible witness testimony, and the burden of proof lies with the propounder to dispel any suspicions regarding its authentici....
The court established that the burden of proving a will lies with the propounder, particularly when suspicious circumstances exist, and that the absence of key evidence can undermine the will's valid....
Point of law : Section 68 only envisages the examination of one among the two attestors to establish the execution of Will.
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 burden of proof for the genuineness of a will lies with the propounder, and a will may still be valid even if it lacks a signature on every page, provided it meets statutory requirements.
The burden to disprove a Will lies with contesting parties after the propounder meets initial proof requirements; mere non-registration or signature comparison is insufficient to establish suspicious....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
