(Byflgi: sv_.R~HvLE:.C;D1: I-EUDLAMANE,ADV.)
IN THE HIGH C()UR"I' op KARNATAKA AT BANGiaLC§I§}i;-
DATES Tms THE 23rd DAY OF ,._}_UNE'
BEFORE 1' _ a4': V
THE HQIWBLE MR. JU'51"*¥£?E: A'5f'*0§'fl3'§ ¥\a}'3'L'\...'.
REGULAR sacowo APEAIJ 1% is
REGULAR SECON .N€J_;'._1?'~]\f1f200?
BETWEEN : V
THARA s;a'E*f*§:y}" _ , V 'V _
SINCE DECEAS_E'_D NQ9: "¥€,I§P§<?I:}SS}31I~f'"£7}3D
BY :,.¥2;gP:f2;v:,LA1<:r.Nc;...'j2.&-.3,.-- "
1 NAVE'Ei¢C§iiAN§:§m*». S}«:§;*i*1*Y A
ACEEID__AE3O'E£*'T!}_I'YEARS...___ . '
2 M SATE$CHAP€i§:3;A--§vH-E???
AGED ';:3<3t,J'r 3.? YEARS'
, ._E 3{)'i"I-I ARE AGRICUi,.'I'UI?1ST
- R /st;-% B£tVAGUTH'LE"'HOU SE
KAD§;;SHW.ALYA VILLAGE
=BAprru*..e=u,1'A1,uK
L) K. 1;:»;s'rR;iT;
RAMADAS RAI
' 'S/C) LATE M RAMANNA SHETTY
ADULT', R/A ATHRABAIL HOUSE
PERNE VILLAGE 85 POST
ESANTWAL TALUK, E} K E)iS'I'RiCT
J»
'I'
2 B GOPALAKI~2I8HNA RAI
sxo LATE M RAMANNA SHETTY
ADULT, c/0 VIJAYA BANK
MAYO HALL BRANCH
PUBLIC U'§'ILlTY BUILDING H ' 4
M G ROAD, BANGALORE » K'~$SPG!~!_!2EN'!.'S.
{By Sri: SANATH KUMAR sHE'r'1'Y,ADv.};__ A'
THESE APPEALS ARE F'ELED*§_)fS.1GG'OP'"C--?C AGAINST
THE JUQGMENT 35 DEGREE mp i23._3.o';*..;?AssED. .1115: REA. Nos.
5/01 85 6/o1REsPEcT1v§;L*z.' ON"'I'H'$--- _FILE._OF THE': ADDL.
DiS'I'RICT JUDGE, D.K., MA«NGA_LE>RIa;; gIi)I"é3l$:iIS::"2.!_NG THE APPEAL
AND CONFKRMING THE Junemiwr AND DEGREE [rm
7.122000 Passaxxrn os....2:2/93 ,or~:'r'rHE,---'£°1LE <3? me
PRLCIVIL JUDGE .(sm_31~:) MA].*~Z'GALOF.?.E, L';1s':.s.-z;'ss11~zs:%FT.%
are considered together and disposed .
o:f by judment.
J
'a
2. 'i'he appellants are the piaintifie in
O.S.No.212/1993. '§'he suit was fileti
declaration in respect of the suit schedule §I'0p€I_'§.i6'S«"'
their claim on :2 WELL dated 25.3.1971 said...t§'j~'h;1§é{*1§¢e;i'5
executed by late M.Ramam1a Shetty;
plaintifi and the father of p1ai11ti_fi's 2 of 'V
piaintifie was that the defendatj;'tsrhave beet: to
claim title to the pmpertg eveftttsit-§eeVVV'tt§tey céiirtie know
about the said WILL. that the
defendants haegé A to change the
revenue1v;entt'ieéL'§3:(7.d,_t:i*:e proceedings relating thereto.
The _ the:efi5t*e:_"'eefi'tended that they being the
absoigta. o§vnei*s..,ei" the seuittecheciule properties in View of the
V. '"s.:-ii;:1V'ILL; ai"'e«&entit1Veud«for the declaratien as prayed in the
u':111it.& . V
3." fi'AI'i,.e defendants in the Wzitten statement made 2.
, claim apart from disputing the WILL propounded by
plaintiffs. It was also contended that the properties in
J
'-
question were not the absolute properties and had stated
with regard to the properties having belonged to the mother
of the defendants late Muthakke. That apart, the defeiid-eii2.ts~v.,
contended that the said fate Reeeenne Shetty whejis A'
father of the defendants had executed'
23.10.1987
and under the said WIi;L
suit schedule properties equaiij’._vtC-…eH his four’
the plainfifis 2 and 3 and d%efef:e1ae#;s 1′ “and The
properties which were Shetty in
the name of been kept in her name in
the said WILL. _ Thus sought for dismissal of
the suit. and u the counter claim. The facts
that the relationship between the
inasmuch as the first plaiiltifi’ is the
seeondd wife’ Ramanna Shetty who had married her
‘after the death of his first wife viz, Muthakke. The plaintifie
are the sons born through the first plaintifi’ and
.._fi’det’ez1dants 1 and 2 ape the sons bom through the fizst wife.
4.
In View of the rival contentions, the trial Court
framed as many as six issues which react as hereunder: ;
E)
Whether plaintiffs pnove that late M.
Shetty has executed :21 East will dated:
Whether defendants prove _that._Iate
Shetty has executed la: Wi_lI”~ 1″
25.19.1987′? V
Whether plaintiffs pxttivetf that 2 thggs ‘ the
absolute <3wr:e;4$~,_of :.'g§fl:T;and 'B' ectivedule
properties as per Wit} 3.?
‘pztovve that they are entitled
‘ “vfertt1/4t’-\ sfiégre in the suit properties?
” W1:1et}1er’V’:1;>£aiVt1tiffs are to be directed to give
2 ‘ aeeeunts vrtetéstrdirag income from the date sf death
father iate M. Ramanna Shetty?
xgvhat reiiefs the parties are entitled?
Ieoieter to discharge the bl.1}f’d€11 east on the parties,
u x V’ the seeoztti ylainfifi examined himself as F”W.1 and 3. witness
.”‘tA*_.D’§12;enI§ataram was examined- as PW.2. The documents at
J
‘5
Ex13.s.P1 to P51 were marked. The first defendant examined
himself a$ DW. 1 and the witnesses Sri Annappa Naik
N.K.Sadashivaiah were examined as DWS2
documents at Exhsfll to D7 were marked.
6. The trial Court on ;analyeQi1_1§’_V3:A.11e e§if:1é£*.ce VV
(iismisseé the suit 3.13.6. decreeti.e¢’L:.fi3.e S its
judgment and decree dated ?’. 1&.2;’2i§'(V}’€3’VV\is.’h_ere1,fi3;<:i;er one-
faurth share to the defe£1de¢nise._Veie;' in the WILL
dateé. :0;.:1§3*;V was dgemea and in eflect the plaimes
were a1sc e1:;1it1ed on their behalf under the
saw wreeze me claw inning to be aggrieved by the said
'.}'edgfi1e.m:«."eprefenec3 Aappeals before the Lower Appellate
the dismissal of the suit and the ether
heifiig_44egain,.e_t' deereeing of the counter claim. The said
'e:.ppea}s" VSa%é,re registered as RA N035 and 6 of 2801
J
"a
'7. The Lower Appellate Court on re–appreciatio1:1 oftjze
materials by its judgment dated 22.3.2007 has .
both the appeals. The plaintifls are therefore M
Court in these two appeais against the
and judgment rendered by the % V __ V
8. Heard Sri S.R.Hegde 1eai’:;e<t:._:ee113;:§3e1
for the appellants and K.
Counsel for the 1’espon(ien;’ts.f’ _
9. TI:1;::_ ieferred to in the same rank as
assigxmd» to before” trial Court for the purpose of
ee3;:zvetz1.iefi&:’e clarity.
” ‘teamed counsel far the plaintifis would
‘e§¥fltend’*tt’ié;t at the outset, since the defendants themselves
on a subsequent WILL ti) contend that by the
WILL, the earlier WILL ciated 25.3.1971 Ieiieci on by the
u has been revoked, the further proof of the said
J
WILL does not arise. In that context, the question. is as to
whether the W§LL dated 21.10.1987 has been proved
defendants in acoordance with law. In this _
counsel would contend that the W¥LL refied. V ”
defendants is shrouded with sfispieiefi;
defendants had not nelied on ‘vefien
change of mutation exxtfies “i’he on
subsequently in the Sl1fit.’~..’_ ._ to the
sigxatime available iu the in the
WILL reigied _0iidefefi€iants_’is shaky and not sixniiar to
the signeitige of Shetty. ‘That apart, Late
Ramanna 1She4€t3z,VWas.{wex1d:Iy wise ami was aware that there
V. ’13: 3’:1d”e~§eqiiiz”e.t11ent o§A’HétaWm p paper for the WELL and as such
‘$21; ‘ii;;cu 1136 made the WILL on a plain paper in
his’ and had further deposited the same. it =
is also cexgfiezlded that the éate on which the eecond WILL is
been made is a NARAKACHATURDASHE day, on
day, he could not have made the WILL. it is filrther
°’eo113:ended that when these and the other suspicious
1
‘*1
circumstances were raised, it was ineumbe:§i””o:;v— _
propounder of the WILL to remove the euspieion, dd
instant case, the defendants have failed tode 5;; em .’
the Courits below were not justifled. _ ” .V ; d
1 1. On the other ha.nd,__”~1ea1ned for “the
defendants contended that at the pmhabfiifies of
making the second is evident
from the vexy sequence Qf”eve:fis i’£1,£§;$I}i1v}LCh’V’£?laS ihe mother of
the ciefe:1Y1daI2’_fdAsA’ f1gI:’$’;~§’VvyVife_’ of Ramanna Shetty died in
the year A1’9S£3_andV_d}:1e”}§ed._:’ii1:ai’r’ied the firs’: pIai1:1i3’fi’ in the
year 1960 sueh fhed WILL which was executed in
V. ‘£;he 5I9?1,.&that providing cmly Rs.6,000/ ~ each to
‘:1___~.e there were other properties cannot he
of ‘1;~e¢;%; W131.’ ‘ : ‘3–.V.i1′{1x’tZ1er when Ramanna Shetty himself had
jpined ‘t1;1e71. defendants alse in execution of a mertgage
“%ia:d$e;efien, the action of having excluded the defendants to
right to property in the f1I’St WILL was met the
u “WiI1(}€p€I}{‘.i€I3.t decision of Ramanna Shetty. As such on
J
“0
Ii}
xealjsirzg at a subsequent distaut point <31' _
appropriate WILL hae been mack: proyjiding equalijlightl ever; u " =
the irmoperty to all his children and the VT AA
more nature}, In this backgxfeiuxgé, xfizefi th€I7€' 1'§'::7.4$V':.Va
WiLL in existence and when 'fiireggpunéeé
the same before the their
iauxrien by exeminixzg the iféfiimess and the
scribe. Hence, ae t1e_e:V.fdecument, it was
proved in Vwith rtzganfi to the
suspieicéus ___sought to be made out by the
plaintiif, 2:13;; evideneeer would disclose that even the
admitted that point in time contain the
V. °signéitt.€ire'S'A:ixiVV'aAAshaléjeiiiélnner. Though the fabricatien of the
the piainflfis have not proved the same.
Ofi t3:1c::ae_ both the Courts below have analysed
Vibe evidegee and have came is an appropzéate finding of fact
V'§'§Li1d:;:€$é'A_«$uch according to the learned ceunse} the judgments
not call for interference, nor is there any substantial
u fquesfion of law far consideration.
J
'¥
I1
12. in the background of the co11tentio:1sV.«.1)g1~§sV$ete*”‘,:’Le”
perusal of the judgment of the tug’ § Court.wou1d M
as already noticed, the issues were binxview
the similar riva} contentions raisecis
The essence of the suit was t}:ze 1*ig}_z.i:_%c1aj me§1 by
under the WILL dated. 25,3;—-19′?*’-1. ‘–~.._ m’,””t3;1m¢..v~’é110r1nal
circumstance, the of the
said WiLL were reqtgireei-I6″ «jg accordance
with law’, Ho§n%e9§ze:r,_ tbeinsfant case, :13; was not a mere
denia} by {he the ciefendants by way of
counter piefieugfrlded the subsequem WILL dated
.2’1,1G’;i.98′”:* beipg WILL and since it was stated that
been revoked, the burdezu. was 03 the
éefeiueieuts on them by issue No.2. In this pegazd, it
seen ” the first defendant had examined himself as
‘.'”witI:1 regard to the right claimed in respect of the
under the said WILL. Ftxrther, the WILL was
fiequixed to be gxroved as contemplated under Seetien 68 of
J
1
the Evidence Act and as such one cf the attesfir; g:’*wi.t§j¢:;*§§Se$”‘ ‘
viz, Sri Annappa Naik was examm ed_&$ DW.2′ u u
an: N.K.Saciashiva2’ah was examned’:as:’_:)w.3′;’.
bmugixt on record that the 0t1:1t§?;f_v§’at.7§t;=:stj1i’g
WILL viz., Sri subba;3ra%’_Bhand.g§A- this
regard, the certificate The WILL in
question had b€En.v.Ij1ark§td”¢’%S:’vE§€;. insofar” as
the requiremcfii ” of uc:>f”i;.he document, on
noticing the indicate that the
exacutioifi A’ a perusal of the
judmen£’«:§ga¥dij3g.A’vi{IA1%€ of the evidence even if
COI1Sid£I3Ei’d fiic’ bf: the contentions urged by the
. V. c(3°::11’sgI for ééppellant, it would not indicate any
7;: at ;§
“I3. Vjother question raised with mgard to the
*Vsuspi§iir;ai?.3«V éifcumstance of the subsequent WILL being
_ efibci i3 that the signature of the {estate}:
Shetty is shaky 31:1 the saiai WILL-dated 21.10.1987
J
“5
as cosczpared to {he siflature in the earlier .
25.03.1971 regarding which there is V1:}§3>$cIio1is”d-ie$}:21§{fxé. fifiz” “‘ ‘V
the ouizsei, the evidence of the sczibefi {DW3}
that he has iéentified the signature
as Ex.[}2(a). He has also stateei’ he the
contents to the He further
stated that the testatofs –‘”@V;;§;f:A1»i.§1_’«(3onditioz1 was
alright, but 1315 ‘figgxgg as such his
signature of the said witness
has meta: ” ellxanner in the cross-
examinatgbgé ” “fact, the PW. I hjmseif has
admitted. tha{” “age, Sri Ranaanna Shetty had
and the fingers were shaky. In
{he said oral evidence, as rightly pointed
out counsel for the defendants, the V613!
‘2¥,ocumen1f.ei. reiieé on by the plainéfis containing the
at Exhs.P42{a), P43(93. 1944(3) 8a(b), P45(a)T 6:. (b)
.___””.iazoVi;Id indicate that in the year $986 itself, the signatures
‘4 become shaky andje very admitted documents would
*0
14
indicate that the signature cannot be disputed znezely
becauee it is not simikar to the signature appeazing <3;-£1: ._
i.e., the eariier WILL dated 2s.3.19?:. Refexegiee *
made to the document at Ex.D4 which~»i3._a« 'dfVIVatfer,{_1ey
executed it: favour of the first
document age'. the same Wou.ld'»i;9;di§:ate the
In addition, the rejoindexj noticeV__d:.e1*t».e;;1'u1vS.4;.199:1_AAis§;i1ed on
behalf of the plainfifis P13 itself would
indicate that the piain. ' §eA"'§.:'.xeIfp..sel'ge§'; the fact
that since N_o§efiiher_ Ramanna Shetty was not well
and was 'bf his fingers though mentally
he was a gumig It is further stated that hence
}::e"g1s}zsx.$;a1i<)"*ia afiie to e.1'V@ ;v)roperijg since August 1987. In fact
fl_1e' ifaave also referred to these aspects of the
matte}; to Vr:s::'1'1L'J%{:'1Vio the conclusion that the document cannot
'be t€I'Bft!:fC§ 3 as suspieieus merely because the signature
shaky. Such oonciusien being based on the evidence
' .._ "ava%il:ab1e an record is neither perverse 120$' eonhaxy to law.
J
'c
14. At this stage itself, it is necessmy to noti e.”‘the
application filed by the plaintiflsj appellants ‘_”
Court under Order XXVI Ruie 10A read with Sec’t:i:§):1jV’_151 ‘
CPO to refer the document Ex.DC2;’A§.V.e;;« «the
21.10.1937′ for scientific ipveseagafimy reg;-fixing ”
signature on me alleged W§LLVb3rc:’L:c0mp&h:imgc
at Ex.P42 to P45. On pe;r;;sing,.i_fC%iié;€,\;1s in the
amdavit accompanying L. keeping in
View the Ieasonvs’ “‘§.§ou1a be clear
that, tr_>fP45 are also slightly shaky
and in uexérent,’ at Ex.D4 being a document
admitted by tee icasmuch as though the same was
tfie.defefi€i.éifits, it was produced in the Court by
évissiie of appropriate notice and in the said
jlwhich is not disputed By the plaintifi’, the
outxight shaky and the same cougaled with the
Qgimission in the rejoinder notice as stateé above would leave
no jroom for doubt so as to require sciexztific investigation. In
ifsuch chcumstance, when comparison as pexmrissible under
J
Section 73 of the Evidence Act itself woulri be sufi_ig::iei1t,~ A’
unaeoeesaxy to grant the prayer. That ayart,
been made by the plaintifls either bhefote
before the Lower Appellate Court opi’ti’io§:t’ of V’
expert and as such it is too iatetthe {iay “seek for tench
prayer. ‘_ _ _’ V A
15. Thezefoxe, insofar’ – ae__ suspicious
cireumstaneee with zgegasflt the document,
apart fmm the the evidence, the Lower
Appeflate the evidence and on
noficirtg the letégaltpositiotté has afilmed the findings, which is
aoc:e§tét>Iet’ to A. and no fi1I’th€}C° investigation is
” V
3 “I6. other cilcumstanoe which was attempted to
‘ be with Iegaxd to the stamp paper ¥:>eing dated
on Atagslgblie hoiitiay has also been dealt with comprehensively
below and in my view, apaxt from the correct
J
‘5
conclusion reached by the Courts beiow on that aspect,
when the defendants have psoved the execution
document and have dispelied the other _
circumstances, they cannot be expected to a$1S’x3′;’fi1;:” of u
the testator having purchased or executed’ t_j.he–_ .d
a particuiar day. Yet anothexr o_ii’cuij1s_danee ddtoflbeb
pointed out by the ieained :11″: that
fly when the for éhéuge of
mutation entry after the dead; Shetty, had not
relied one the …oz1iyf subsequently the WILL is
propounded into being of the WILL
is suspicious. ‘V111. the fact which is not in dispute ‘
‘is that $aid~.;I1utatioi1 proceedings had cuEmm’ ated in writ
that stage, the WILL was relied on and
the exlplanafioiiibeing that the same could have been relied
only” .,;3.i1er having knowledge of the same cannot be
aside. Flnther as stated above, when the WILL is
in accordance with law, the burden was heavier on
V , ijthe piaintziffs io prove that the WILL is a forged document as
J
‘B
hand Wouid not admit of similar situation Which: 1 ”
noticed in the decided cases. In fact, in ».*I;1¢: dd
testator has divided the property id tfie.
well as the defendants and theidéizs-..3qo hot
natural. Even in the cage of
REDDY AND OTHERS d(2§b0d(i)L_ on by the
Ieamed counsel sfog” suspicious
cixtzumstanccgsd the manner of
dispositions and as such
this fhcddh there were coficuxxent
findings. A”‘r_};1’c: above would indicate that
this Cgurf; has 1V1§>t”.;=icc£§§;>t{?,;c.l the validity of tha WILL dated
. V. filemly the concmrent findings rendfired,
1b_12f_{)Ii daf1a1y’sing’_i’i;he situation, has same: to the conclusion
that 1116 findings in the present facts are neither
Venvneous her perverse. Hence the said decisions would net
V’ vgfdssistance to the piaintiffs to persuade me to take 3.
…WxrieVfi;=s2* difiémnt from that which has been taken by the Courts
ifbelow. Infact the decision in the case of PADMAVATHI vs
i
”5
RAMAKRISHNA SHETTY Arm ANOTHER (1999
whczrein {his Court had accepted the Eater b
distributed the properties equaiiy
against the exclusion of the othor hoiis profegofinoe £0 axfiy V
one in the earlier WILL, relied for
the defendants would be; mom V fo._the foois oh hanci.
18. Gonsidgiilg 101:’ ‘tirxe matter, I am
of the opi:1;ion ‘ do not project any
substazivtiflfi of_:AV”La}v– for consideration. The
concurztani: ..oj3i1:Iiox:i$V by the Courts below by way
of findfilig of and do not call for intcrforence.
. Heooe apfxsals a1oo'”1ioble to be disposed of at the stage of
1eu;ifiisSioJ;iL”«._&Ho:ic¢_i~:it is ordered as follows:
..(;.>.8_D_’.E.§
I) ” 1 Misc. Civil No.8-438/2(){}9 is dismissed.
._ i§f) RSA Nos.1713/2097 and 13141209? stand
dismissed.
mg The palms’ to tmr {heir own Costs-‘.<':i:i1
appcais. .
A
Akcf 13%