IN 'mE HIGH COURT OF' KARNA'i'fi;KA AT BA_!§'G!§LC§_!_§§'$:_.V _
DATED THIS THE 218* my 0;? JU1..¥,,.A2msAfj ._ 3
BEF0R£; %' V
THE HON'BLE MR.3I?_J4STi(3;E._I{"--RAMAi'§£?£.}$ Q"
REGULAR FERST Afififiéia. NO. zaoé,
BETWEEN:
INDRAMMA '
W/<3 SRiN1VASA.Sf%1U'RTHEf V :
50 YRS, R/A B;Ps.G§§LA3".;.}I\"1'Ei;_ ' _' "
YESHWANT_I}'PUR HOEBLI '
BANGAL0R;3:_V N€}§_RfFH 'i'}\L.§,i£{' * Q:
APPELLANT'
(BY SR3---.;< S éii/SJAYAKAR ASSOCIIYFES,
ADV)
$:H.A:2ADA:vim -------- ~ "
wgo _N}'.RAYANAPPA
V' " 3:3 Y'RVS.,RfA MYLASANDRA
"R..'iFw...g:O3;LEi}E ms':
« KEIQGERE HOBL}
B,_M~¥(}$;LORE SOUTH TALUK
SUKUNDAMMA @ SUNDAMMA
W70 M.Ci.GURUM{}RTHY
_ V NO, 14(5), 21'» MAIN ROAD
' 2269 BLOCK, IBALAJI ROAD
TI-{YAGA RAJ£§NAGA?R
BANGA LO}*v3E~2'S
3 N M NAGARAJU
4 SHIVAKUMAR
5 VENKATARAYAPPA
6 GOVINDAPPA
7 JAGADESHA
8 SHAMANNA _ L
9 BE'I'T&SWAMY GOWDQ:-V. _
20 sANNAF'"P2¥'i::jLA%:V1"4
11 Govi';§D:?¥é€e§§£i}'*'~. . V?
.... .. , V . I E? F5
12 }3RE§:N;$:'AsA':g»§1r1§'m;;*; RLSPOND M
F'£3TH4ERS_NAME x:irF*;93"*1§o D12
N0? KNOWN * "
ALLD3 'T0 D121'\R:E:.._}ZESIE}§NG
A. ~ IN A PC1§_'TIC9N'OF'-THE MUNISWAMAPPA
.. BUiLDING;V-BAGALKUNFE
Y_§f~SH7WAP?I'HPUR' HOBLI
2 ' ; B13'J'5GALORE NORTH TALUK
® WWLHA WA' '"'-'f_{'B'£ ~v§'~°'»!_V"'- '7'~"A.'?_'_"'"f§5*"l'*1"\\',\/. Pom 2-2, 3 5m", 3414 _'F3"'fl~\f-fl«N\!\v1AJ,fl.i)V'f_o£
._ " 31-'}'L$ERVi59 3 "~f3*N Na-nae 1>rs9c--:n/5:313 k9-;TH_;
Md {.(g--"{s'..~'.ii»9'»'>i§. ' 5R'_R1**3'--.f_"**'V'r~'I°«" -Ms I'--or2R~I 5 '?.r\.rU5~RAy4m.a6uAm*y,n-zsv Eon fl-2,)
_g__ /; 'wigs APPEAL IS FILED UNDER' SECTION 96 cpc AGAINST'
THE Jim-GMEM. AND PQEIAMINARY DEGREE DATED 27"-11~
A .9 * " 2239.1 PASSED {N O.S.NO.4',210/198'? on THE FILE 0? THE XXII
' ._ ;~.,m:)':~.c:TY cum. &; sasszcns JUDGE, BANGALOE maczeasxwc
_ ""I'HEZ"SUIT FOR pammow mm mssgssxem.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMiNCx ON FOR PRONOUNCEEENF THIS DAY, THE
CGUR'I' DELIVERED THE E?'OLLOWiI'€G::
}§J7._
The appellant] defendant No.v41V..}1:éis xfifl}.
appeal challenging the judgmcfit and V
passed in 0.3. No. 42 1.z3~;fV_198i?"'g':1a:§::&;;: 5377.-_11-200': the XXII
Additional City Civil and'
2. For of 'fflivc: parties Wiii be
referred to; V' to' then: before the triai
Tihe Case leading to this appeal is
that the V' iiiéxfi stzit for paxtiiion and passczssljon
the n'.:§
5. The 2nd defe3:1da':'£i'V.:._V"V afstatement
supporting the case that she
along with plaintifi' Vagfgaaégit entitle to 1,13
sham inmperfias and the rents
iigféxiiod that late Muniswamappa
had cxeciitzcfi anja? 0542-1932 and 02-04-1935.
ut'v5;'*Thc ;:n. the materials placed before it the trial court
V. all 5 issucs and 2 additionai issues have also been
' In support of the case of the pLaim:ifi' she examined
'hi-::rseIf as PWK1 and also examined one Hanumanthappa and
Narayanappa as PW2 and 3 and got marked Ex.P.1 to 9.
iv?" / ,
The defendant No.1 got examined as D.W.I
cxamincd one Siddagaxzgappa and Siddappa as:
and marked documents Ex.D.1 ~13, 4Tl1s§.V§i§fé§iciéi1t4.'_?Jo';2 V
examined hcrsclf as DW.-4 and d11--L.;
as DW.5. ' A _
8. After oonsid¢ring
evidence placed bcforé xif:.:«i«:'1T1c the sufi: flied
by the "tilat thii' plaintiff
and dcfcnc:1a2i;."'1 :5' u1 /'érd share each in the
suit "anti -'also oniarcd for enquiry for
determifiairéon. v oVf* Hence the dcfamiant no.1
haggkfdiac 111$:
flit by the counsel for the appellant that the
to appmciatc hath oral and documentary
evidcnrfir/placed on record and came to a wrong conchzsion
decreed that suit It is argued that the finding of
fix: court with regard to the execution of Will dated 02-
VM V. 1986 is incantct and illegal that the trial court ought to
have held that there is valid execution cf the said W11-H as
' 5
§ :1
3");-.--»-'__""_,-*'
\
there is no infinnities in the same. It is tfié' _
triai court has not properly appn:ciatcd V.
DWs.2 and 3 attesting wimess
contended that the trial 00:11": L.
dacision mpartcc} in case of M snigh Chhcti
and otlwr, reported in it ié that
the findings nccoxxied byV1g;1:'m_u§;s4i justificd and is
contrary to t1;1~c":*;#;_i}?icr:s:::;: to the facts
and = for allcwving of the
appcaiI"~I)y" ivdrfiér of the trial court.
In' contcnfions the counsel for the
the follmving decisions:
_, BALA 3033 vs MANINDRA CHANDRA
1 {AIR 1932 SC 133;
'V 'EHAMBHU NATH 55 OTHERS vs GOKAL CHAN!)
85 OTHERS (AIR (39) 1952 PUNJAB 146
VT " -~--TVhe Icarncd counsel for the appezllant has 3139 relied on the
decision of the Apex Court in RABINDRA NATH
E
, _, :1-
9
MUKHERJEE «'35 ANOTHER vs PANCHANAN BANERJEE
(DEAD) BY L.Rs 6:. OTHERS (AIR 1995 SC 1684) it
is held thus: ' I' ' Z
"Succession Act (39 of :1-
Will ---- suspicious cixcumaitances --- will
registered - Sub-registrar tI:1_aLt~!mi11 f
had been read over ts execumr. Who,'
doing so, admittgd contents -{,vf.::u:t' "
witnesses to d::-(;z"1J:g1c11t"-'e3src1's:_
loses significance. u "
3 "V-S'u_ooes3$ic5nV A-V_c'tf(3E3' of 1925) 8.63 --
511111;-'&_-e Su's;)icicué""cir¢umstan¢¢s - active
""" . §}%aye(i..by a ¢Ik33s"'m}ation of one of the
_ ix1?:_;:xcc;:1tion of Will --- may raise
s'usf:;i{:ir_3i1~i,ti'aft)'5;ence of other circumstances
u 4' on' Shbw voluntary chaxacter of
2 L «, documexitf .
V ii}. 01; the hand it is argued by the counsels for
fhgr 1 1103.1 axici 2 that the defendant:
has failed to prove before the trial court valid
cxccutigqii of WiH--Ex.D.5 and there are suspicious
cfififimsmnms in executing the. said Will and thfi said
fiuspicions am not cleared by the propoundcr of the W131 and
that the evidence of attcstors of the said Will who have been
examined brzfozt the trial court as D.Ws. 2 and 3 dificm each
_, .. -»
6 ,...
other and there: is among suspicion with
execution of said' Will by late Mu;fisWa.maj3pa;:tfi11§«'fii€
plaintifi' and defendant 110.1 and 2 tin: éagghtcrs;
sand' Iate Muniswamappa e;§ii:.3J;l;: 1.] in
the suit schedule pmps:-.1f.tJ'.cs, flfzcre' £5110 or
ineorrectacss in the by the trial
court: and hcncg prayed' Appeal.
11. the records, the
point is, Whether the order
of tl1é;§v_ incorrect, perverse and
4; "12... oiic late Mmfiswamappa was the owncr
'c:'_i:'1':.:=+. §-{gfi gcheduxe properties and he died 01:: 13--o4~1935,
issue and he left behind him only the
a11¢T~dAéfcndants 1 and 2 who am his daughtcrs to
V"*331cceez¢iiv.1§:5 his estate. Though it is contended before the ma}
the plaintifi that the suit schedule pmpertics am
ancestral properties of late Muniswamappa, on the basis
of the evidence placed bcfoxt it, the trial court held that the
/K'
suit schedule properties are the self acquired properties of
late: Mmfiswamappa. The plaintifi"/respondent No. 1". ii:-_1j s.;:1ot
filed any cross«objec1:io:n 3116 also not raised %
with regard to thc said finding recorded by. -.
Tm trial Court after consider-ingj tht;_:A4(:i(§=ci;1;nd:u’§:1té’.”;*&i:.t::’!V3ji£A!:.
endorsement isstmd by additigfnal 1 *’
Coxzirsmissioner for 51133116 Ban of
suit schedule pmpcrtié:s’*~jtcm;’AL’5,. Ex.vI’v_’)H~4 v — the sale
deed V3at§:.’. i§6in;1iSw31i§1appa in respect of suit
schediilc .- the cemficd’ copy of wxitten
statemenf Mtmiswamappa and others in
O.vSéHcv}.358/1V§§8*2.ag;;(1.fi1rthcr by relying on Ex.D~13 — noficc
» igg-3._1cd..Vby __ 2″” defendant admitting the suit schedule
acquired properties of late Muniswamappa,
has come to tilt: conclusion that the suit
V schgzdiile properties are the self acquired prepcrtits of late
The finding of the trial court in this regard
” “‘”I5.as been accepted by the parties as true and correct and
thus I have no hesitation to hold that the suit schedule
properties am the self acquired prspcrtics
Muniswamappa. Of course, fuflzhcr, from
copy of sale decsi dated 21-5-1969 u
Muniswamappa in favour of oigc ‘Sii’n,daram;;i:i
respect of suit schedule item’ 339.3 Aprgficny, , T.
has mm: to the conclusion was
sold by late Munswam£i;5p.a thus thc
same was not availabhz date of filing of
the suit. The V is proper and
anti any interference. Thsrefore, the
only qut§s’tig§n Vmy consideration in this appeal
is,…’éfR?1i1t:thcr tI1x2..V_aVr:1é§feI1:ciant No. l~»appclL:mt has successfully
‘V the trial Court the valid execution of the Will
dam: and 2-4-1936 said to have been executed
by”«.Iate;”‘M:{1f1is1vamappa, without living roam for any
suspifiirszi and whether the approach of the trial Court with
A’ to appreciation of evidence in respect of the said WEI
% proper and eorrect?
/r .-
‘ {E .,,
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Kg;,,/;,.,
13. The two Wills Exl)-5 6:. 6 dated 2-4~1986 and 6-
12-1982 respcctiverly have been produced before
Court by the defendant No. 1. Both the Wills are
been. executed by late Mtmiswamappa _
Ex.£)~5, thfi Ex.D-6 — earlier Will have
Admittedly, E1x.D–6 is a If(3g.i§tElg\§£1 ‘O13C i%:*’,_~.:.:;5.~.4.¥-s’–~,i”.~.’=.*–..%
umtgistcred. The dcf£tncian_t.1 — .a’pp:¢:}ia.f};t has ‘V
made no aftzmpt ~..13roveV””‘tbé:’:’ VIV:V3’x.._l3–6»,’ bf a
suggestion was put to VAi.h;vézi_V__hc is one of the
aficsfiiag will Ex.D–6 but the same has
been denied by .:’:’_’Hc§wcver to prove Ex.D-S on which
thc..§§§étiandanf I appellant hcmixz, is heavily relying
.A examining himself as 1:>.w.1 also examined
saici Will at Ex.D~5 as D.Ws.2 8:. 3. No
ddiibt ?J:3é’vE5.Ws.2 35 3 have deposed before 1111:: C-()Iii,I’t with
R mgHardVV”t;} the cxccuficn of the Will, but the suspicious
gfiircfimstanccs surrounding the ctxecufion of the said will
@5365 not allow to only rely on those depositions of I).Ws.2 8:.
3 to hold that the cxccutian of the Will at EXJ)-S has been
sucocssfufly proved. Mere examining the ‘ .
for proving gcmainencss of the tcstgtors nz_§f’ ” ‘V
automaticany establish the vamgty of £53″
suspicious circumstances sufiqundifig fie C2′{€C’i.§fiQ;} of tI1e. >
Will are ruhid out. In the zfgficci counsel
fer the plainfifi before’ case cf KALYAN
SINGH vs CHHOTI 8!. OTBERS 3%) wherein it
is helci thus:
“jé1’V’WiH;V”is c1:_1é'”6f the most solemn
_ –doc:11m_é11ts'<kfiewa -to law. The cxccutant
_ ' ._of' fhe«.VWfliv.¢£–.m'n9t be caflcd to deny the
exccutirsn' or explain the circumstances
'wh:Lc_h it was executed. It is therefore,
es-smntjal ' that trustworthy and
V evidence should be
produced before the Court: to establish
'gténlxinzncss and authenticity of the Will.
Itflxxiust be stated that the factum of
' -czétcution and validity of the Will cannot
~ _ be determined merely by considexing the
evidence produced by the pmpoundcr. in
onier to judge the credibility of Wimesscs
and disengage the truth finm falsehood
the Caurt is not confined only to their
testimony and demeanour. It would be
open to the court to consider
circumstances brought out in the evidence
or which appear from the nature and
contents of the documents itseI:f. It would
be also open to thfl court to look into
surrotlnding circumsfanccs as
AW'-3.11'
inherent ixnprobabilitjm. .01' the Véaéc to " A'
reach a proper coaciuzsion on «.tI:i'c_: 1€}fa'tu;t':. of '
the evidence adduced by " _ V A ~
14. From the perusal of above clear
that the evidence addvxxcgf/d the $1.28 to be
considered taking surmunding
chtumstanccfi case. In the
instant case,” Will has ilajlm to remove
the the execution of
the th:’:1eV ofiézrcad by the tcstator as to
why no fihafitor given to his elder daughter 113.,
the, tht: tcstator has not assigned any
t1§ e~«,c§xccufion of the second will — Ex,D~–5 data!
“2+4;.;§s5i””+m;¢§;”1ic had already cxacutcd Ex,D-6 mgistcred
WiI}I”‘–dat§d 612-1932 and also the tcstator of the Will had
Jfe:=i1«%:§1 register the win dated 2-4-1935, Late
Mtiniéwamappa had rcgstercd his earlier Will. dated 5-}.2«
.~1«9§82 but the second Will said to have been made by late
V Muniswamappa by cancelling his earlier Will was not
regstered. The earlier registered Will can be cancelled only
by the subsmuent registered Wilt. No maso;:;é.. ‘weze
assigned by the attesting witnesses to the A’-.
Ex.D-S as to why the same was not V .¢
D.W.2 has deyposed before
qixestioned late Mzmiswamappa while *’
– Ex.D-5 as to why no share tixc late
Muniswaznappa was ‘_ to -I to f)}W:2 that he
had given te’ but no attempt was
made by iietenvfiafifiteé herein to shew before
the 1113′ I properties given to piainifif by
£ate7;i\!Iv11i1iswaeiapp§},__&ti1e attesting witnesses to the Will «-
A ex».::)–5 explain before the trial Court as to Why the
teVe.’::a.:toxr” had put two sigxamze 03:: the last page of
. Mirther, the signature found on Ex.D–5 8:. 6 does
V 1:0: each other. Further more, according to D.W.2, late
” Nifimeswamappa died after four to five years afier the
“execution of the Wiii and according to 13-.W.3 the testator
died after four or five months after execution of the Will.
Therefore, the evidence of D.W.2 65 3 the said attestors the
Will — EX.D–5 creates doubt with regard to the case_.0fL=–1’*
defendant that the Wifl — Ex.D–5 was
The defendant No.1 has not made; att_eiii’1)t.:” ”
the scribe of the said Will. Se aiseiflne :§ae;¥;1:i:i:.;:ief’ei1£iéi:§it._
is a beneficiary under the
father had not executed any T_tl”1e {iefendant
No. 12 who is the ef No.1 «- appellant
herein, who is also a beneeficaaxjé :£;1a”er %th”c_win, has faiim ti)
appea:r__be.fereV and depose in this rtzgard if the
Will hae ‘ by late Muniswamappa in
resgeci of euit ..eefiedek pmmfies. Admittedly the Will –
to have been executed just 1 1 days before the
A :’?a1f_11:.ie=..é*amappa who died on 134- 1986 wherein the
Wm, .15 have been executed on 22-4-1935; ail these
suspieieiis circumstances smmunding the execution of W131
-Esefi-5 creates doubt as to the genuineness ef the Win.
_,V_77{§’herefore, I do mat find any good grounds to interfere with
finding of the trial Court that Ex.D~S has not been proved.
/1:.§:?:;;;3,»–W
, 1-
15. Thc defendant No.1–.-appellant further failed to
prove Ex.D-6 the carliar rtzgstercd Will said to
executed by late Muniswamappa, the valid _
Ex.D–6 has not been proved by the appcllaxéfr; 31¢: * V.
trial court was right in holding 4?.s¢:hy:d:7;é_1é
pmpcrtics, except suit sc}71cdu.1§; ite1i1 N0.3 2,155 L.
partition between appellant 2 hcrein
and further the ma 1~i§ht;5;V%’i§«;;k~iVV:%u2;at theg} am entitled
to 1/314 sham each in ‘
Tm. is Well masoned and
Passefi am ‘.1 {yr the ev*idc11cc placed before it.
angle, I do not find any good
:12} with flit: judgment and deem: passed by
Ev’. ‘fhczrefom, this appeal is d1sms’ ‘ sad as dcvnid
grfinnts.’ ~
-2
.Tudg3