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2025 Supreme(Kar) 141
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ASHOK S. KINAGI, J.
Lawrence Menezes – Appellant
Versus
Francis Menezes and Ors. – Respondents
Regular Second Appeal No. 1872 of 2013 (PAR)
Decided On : 03-07-2025
For the Appellant : Sri. S.K. Acharya, Adv.
The burden of proof for a Will's execution lies with the propounder, and failure to eliminate suspicious circumstances invalidates the Will's claim.
Headnote:(A) Karnataka Land Reforms Act - Section 48(A)(1) - Partition and separate possession of property following intestate death - Plaintiff entitled to 1/6th share in property enjoyed by deceased father, while defendants assert claim based on a Will - Courts find the execution of the Will not proved as natural heirs were excluded without justification. (Paras 8, 9)
(B) Legal Principles: The burden of proof for the execution of a Will lies with the propounder, and failure to remove suspicious circumstances surrounding a Will affects its validity. (Para 8)
Facts of the case:
The plaintiff filed suit for partition after the death of his father, who died intestate, with claims made regarding property ownership based on a Will contended by the defendants.
Findings of Court:
The courts below justified granting a share to the plaintiff due to insufficient proof of the Will's execution by the defendant.
Issues: The court considered whether the defendant proved the existence of the Will and the legality/regulatory correctness of the judgments by the lower courts concerning property division.
Ratio Decidendi: The courts upheld that the defendant failed to prove execution of the Will and improperly excluded other heirs, justifying the plaintiff’s claim.
Result: The appeal is dismissed, confirming the lower court's judgment.
JUDGMENT :
(ASHOK S. KINAGI, J.)
This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 08.08.2013, passed in R.A.No.1/2009 by the learned Principal District Judge, Udupi, and the judgment and preliminary decree dated 27.11.2008, passed in O.S.No.9/2003 by the learned Principal Civil Judge (Sr. Dn.), Udupi.
2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.12, respondent No.1 was the plaintiff, respondent Nos.2 to 13 were defendant Nos.1 to 11, and 13.
3. Brief facts, leading rise to the filing of this appeal are as follows :
The plaintiff filed a suit against the defendants for partition and separate possession. It is contended that the plaintiff’s father died on 18.08.1990, leaving behind his 6 children including the plaintiff and the defendants. The father of the plaintiff died intestate. The suit schedule properties were enjoyed by the plaintiff’s father in ‘A’ schedule under a tenancy right. After the introduction of the Karnataka Land Reforms Act, he filed an application under Section 48 (A)(1) of the Karnataka Land Reforms Act for the grant of occupancy right. The Land Tribunal granted the occupancy right in favour of the plaintiff’s father on 06.08.1981. The occupancy certificate was issued on 10.06.2002. As, the father and mother died, leaving behind the plaintiff, and the defendants right, title, interest over plaint ‘A’ property is devolved upon them. The plaintiff is entitled to 1/6th share in ‘A’ schedule property, and the brothers are also entitled to a 1/6th share. The plaintiff demanded a partition and separate possession, but the defendant refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to decree the suit.
3.1. Defendant No.12 filed a written statement denying the averments made in the plaint, and it is contended that so far as item No.8 is concerned, the father executed a Will on 19.03.1990 bequeathing item No.8 of the suit schedule property. It is contended that the plaintiff and the other defendants have no right to claim a share in item No.8 of the suit schedule property. Hence, he prays to dismiss the suit insofar as item No.8 of the suit schedule property.
3.2. The Trial Court, based on the aforementioned pleadings, framed the following issues :
Issues:
1) Whether the 12th defendant proves that Santhan Menezes has executed a Will dated 19.03.1990 and bequeathed 34 cents of land covered by S.No.156-12 in his favour?
2) Whether the plaintiff proves that he is entitled for 1/6th share in the plaint ‘A’ schedule property?
3) Whether the 12th defendant proves that female children of deceased Santhan Menezes have not right over the suit A schedule properties?
4) Whether the 12th defendant proves that plaint “A” schedule property except S.No.156-12 should be divided into 5 shares and sons of Santhan Menezes are entitled to 1/5th share each?
5) Whether the plaintiff is entitled for future share of income?
6) Whether the plaintiff is entitled for he relief claimed?
7) What order or decree?
3.3. The plaintiff filed a memo on 05.09.2008 stating that he has no oral evidence, and reserved the right of rebuttal. On the other hand, defendant No.12 examined herself as DW.1, examined one witness as DW.2, and marked 3 documents as Exs.D1 to D3. In rebuttal, the plaintiff marked 15 documents as Exs.P1 to P15 during the cross-examination of DW.1. The trial Court, after recording the evidence of defendant No.12 (i.e., DW.1) and DW.2, hearing both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1, 3 and 4 in the negative, issue Nos.2 and 6 in the affirmative, issue No.5 kept open for determination during the final decree proceedings, and issue No.7 as per final order. The suit of the plaintiff was decreed with costs vide judgment dated 27.11.2008. It is ordered and declared
