Judgment:
Huluvadi G. Ramesh, J.
1. This second appeal is by defendants 2 & 3 being aggrieved by the judgment and decree passed by the Addl. District Judge, Hassan in RA 25/1989 and 28/1989 allowing the appeal filed by the plaintiff and also declaring that the plaintiff is the owner of the suit schedule properties.
2. The plaintiff had filed a suit before the Civil Judge, Hassan in OS 195/1981 seeking for a decree of declaration, permanent injunction and in the alternative, for possession of the suit properties and for permanent injunction against the defendants from interfering with his possession of the suit schedule properties. According to the plaintiff, late Basavegowda the father of the plaintiff and defendants had five sons and there was a partition on 24.11.1974 among the father and sons and a palupatti was written evidencing the partition. The properties in Sy.No. 59/4 -garden land to the extent of 16 guntas' Sy.No. 58/5 B(2) Dry land to the extent of 28 guntas and Sy. No. 123/3-Wet land to the extent of 17 guntas constitute the suit schedule properties. According to the plaintiff, the suit schedule property fell to the share of Basavegowda father of the parties which has been exclusively enjoyed and cultivated by Basavegowda through the defendants 2 & 3 for some years and thereafter since defendants 2 and 3 did not evince any interest, Basavegowda got the property cultivated through the plaintiff. On the ground that defendants 2 and 3 attempted to interfere with the peaceful possession and enjoyment of the properties, Basavegowda himself had filed OS 171/1978 for a permanent injunction before the Munsiff, Hassan and in that since defendants contended that they were the tenants, the matter was referred to the Land Tribunal, Belur for consideration. Later, the Land Tribunal dismissed the claim of defendants 2 and 3 and also the rival claim of the plaintiff through his wife claiming occupancy rights. However, the suit filed by Basavegowda was dismissed for default. Subsequently, a Miscellaneous Petition was filed for restoration of the suit. Since during pendency of the petition Basavegowda died, the petition was dismissed as not pressed.
3. According to the plaintiff, Basavegowda left a Will in his favour which was registered on 12.1.1978 and by virtue of the same, on the demise of Basavegowda, plaintiff has become the absolute owner of the suit properties. Contending that the defendants having no right or title are interfering with his possession, he has filed the suit for a declaration as well as for a permanent injunction and to declare him as the original owner.
4. The suit was resisted by the defendants separately i.e., Defendants 1 and 4 filed a common written statement and defendants 2 and 3 filed another written statement. Defendants 1 and 4 have supported the case of the plaintiff and defendants 2 and 3 contested the suit claiming that they are in possession of the suit property. It is their case that since Basavegowda was old, he could not personally cultivate the properties and defendants 2 and 3 were cultivating the same and not the plaintiff as claimed by him. It is also contended that since they are enjoying the property, they are to be treated as deemed tenants. They have also admitted partition of the suit property and it is their case neither the plaintiff nor Basavegowda had cultivated the suit lands after partition.
5. The main contention of these defendants is that Basavegowda has not executed any such will dated 12.1.1978 and it is a concocted document and that Basavegowda had no absolute right over the suit property and he had only a right of maintenance during his lifetime. As such, it was only a life interest and hence, according to them, on the death of Basavegowda, all his sons and entitled to a share in the suit properties.
6. Based on the pleadings, the trial Court has framed as many as eight issues. After trial and after hearing the parties, the trial court has held that the plaintiff failed to prove due execution of the will. It has further held that plaintiff is in possession of the suit properties while rejecting the contention of the defendants that they have perfected title by adverse possession. The suit of the plaintiff was decreed in part by issuing an injunction against the 2nd and 3rd defendants. The prayer of the plaintiff regarding declaration that he is the absolute owner of the suit property as a legatee and legal heir is rejected by the trial Court. Being aggrieved by the same, plaintiff as well as defendants 1 and 4 filed appeal in RA 25/1989 and 28/1989. The learned District Judge while allowing the appeal filed by the plaintiff has held that the plaintiff has proved due execution of the Will. However, the finding of the trial Court that the plaintiff is in possession has been reversed and rather it is held that the 2nd and 3rd defendants are in possession of the suit properties. However, while decreeing the suit of the plaintiff, it has ordered defendants 2 and 3 to hand over possession of the suit properties to the plaintiff. Being aggrieved by the same, this second appeal is filed by defendants 2 and 3 by raising several substantial questions of law.
7. At the time of admission, the following substantial questions of law were raised.
1. Whether the court below is erred in allowing the appeal of the 1st respondent in view of the fact that the Basavegowda had only a life interest in the suit properties and such being the case whether he had any right to execute the Will. In other words, whether a person who has got a life interest in the properties can bequeath the properties by executing a will.
2. Whether the Appellate Court is right in holding that the execution of the will has been proved.
Heard the Counsel for the respective parties.
8. It is the argument of the counsel for the appellants that though the trial Court has held the plaintiff has failed to prove due execution of the will, the Lower Appellate Court has come to the conclusion, based on the evidence of the scribe, that the Will has been duly executed and validly proved and has passed a perverse order contrary to the finding of the trial Court despite the evidence of the attesting witness who has not supported the case of the plaintiff as to the signing of the will by the executant in his presence. It is further argued that as per the case of the plaintiff himself, Basavegowda, the father of the parties had only a life interest as evidenced in the palupatti and ignoring the same, the Lower Appellate Court has held that the plaintiff is entitled to the suit properties in view of the Will executed in his favour and that Basavegowda had validly executed the will in so far as the suit properties are concerned. It is his argument that such a finding of the Lower Appellate Court is erroneous and though Basavegowda had absolute right over the suit properties as per the palupatti, he has taken only life interest in the same and in the absence of proving the Will as required under law and since he had only life interest in the property, the question of bequeathing the same does not arise. In support of his argument, Counsel for the appellants relied upon the decisions reported in : [1982]1SCR1188 ; AIR 1990 SC 1724; ILR 2000 KAR 192; (2004) 6 SCC 325; AIR 1961 SC 1316; ILR 2003 KAR 90S; ILR 2002 KAR 4723 and : [1996]1SCR1152 .
9. Per contra, learned Counsel for the respondents vehemently contended that the Lower Appellate Court has rightly held that Basavegowda the testator had absolute right over the suit property and he has bequeathed the same. Based on the evidence of the parties and witnesses, the Lower Appellate Court has held that the will has been duly proved. It was further submitted that as per Section 6 of the Hindu Succession Act, Basavegowda being one of the coparcener and also as the head of the family, has got absolute right over the suit schedule property and even though it is treated as a limited interest according to the palupatti, Basavegowda could exercise his absolute right over the same. It is also contended that the finding of the trial Court that the will was not validily proved is erroneous and on rightly appreciating die evidence on record, and also relying upon the decision of the Supreme Court, the Lower Appellate Court has held that the will is validily proved. learned Counsel for the appellant has relied on the decision in ML Abdul Jabbar Sahib v. H. Venkata Sastriand Sons and Ors. : [1969]3SCR513 to contend that witness has duly signed the will and also in the decision in Seth Beni Chand (Since Dead) by Lrs v. Smt Kamla Kunwar and Ors. : [1977]1SCR578 as to the meaning of attesting witness. Accordingly, he tried to justify the finding of the Lower Appellate Court.
10. Having heard the Counsel for the respective parties, let me consider the substantial questions of law raised. Exhibit P1 is the palupatti said to have been produced by the plaintiff himself. It is not the original but only a copy and it has been marked subject to objection. According to the evidence of the plaintiff, there was division of property in the year 1974 and the original palupatti was given to the 2nd defendant. However, according to the 2nd defendant, no such palupatti was given to him. It is the case of the plaintiff, the suit properties were allotted to the share of his father and after about 11 months of the palupatti, the shares were released to the respective sharers. It is also contended by the plaintiff that the 2nd and 3rd defendants, after the death of their father, are forcibly cultivating the suit schedule properties. It is also in his evidence that the plaint schedule properties were allotted to the maintenance of his father in the partition.
11. Apart from that, it appears that there was a claim set up by the 2nd and 3rd defendants and the plaintiff before the Land Tribunal claiming that they are tenants of the suit schedule properties. The Land Tribunal has rejected the application of the plaintiff filed through his wife along with the application of 2nd and 3rd defendants. The Tribunal has held that the properties were family properties. According to the plaintiff, as evidenced from the palupatti-Ex. P1, Basavegowda-father of the parties is said to have retained the property for his maintenance and he has not expressed anything as to taking his share absolutely. It is the admission of DW1 in his cross-examination that his father has taken only a life interest in the suit property, In view of the same, the question now is as to whether Basavegowda had the right to bequeath the property in favour of the plaintiff when even according to the plaintiff, he had no absolute right over the same and he had only the right of maintenance. What is stated in the palupatti is that the share of Basavegowda is for his maintenance and it is not made clear as to whether the property is taken absolutely or only as a limited estate. In view of the admission of the plaintiff himself in his cross-examination, the estate is taken by Basavegowda the father of the parties, only as a limited estate/for life interest, though the father of the parties had an absolute right to take the suit properties, it appears according to Ex. P1 produced by the plaintiff himself and as per his admission in the cross-examination, the right of Basavegowda was limited only to life interest as it appears to be the interest of the parties. In the decision relied upon the Counsel for the respondent in the case of K. Muniswamy Since Deceased By Lrs v. K. Venkataswamy, ILR 2000 KAR 3450 this Court has held that implied stipulations in the instrument if they are to be read into the terms of the agreement should be clear and so unambiguous to suggest the one and only inference in favour of the restrictive covenant set up or pleaded otherwise. If stipulations are ambiguous, susceptible to contrary or alternative meaning, it would not be permissible to be read in to the said stipulation by inference restrictive covenant. In the case on hand, what is noted in the palupatti said to have been written on behalf of Basavegowda father of the parties is that he takes the properties for his maintenance and the said wording coupled with the admission of the plaintiff in his cross-examination to the effect that the plaint schedule properties were allotted to the maintenance of his father in the partition definitely conveys the meaning that it was only for the maintenance of his father and he did not take his share of the property as an absolute right. However, if there is any dispute as to the right between the parties, it was for the father-Basavegowda to challenge the interest created. But as could be seen the palupatti is said to have been settled in the presence of Panchas.
12. As to the admission of the plaintiff that the property was given to his father for his maintenance, the finding of the Lower Appellate Court is that the plaintiff would have said that the properties were given to the maintenance of his father in a lighter vein and further stating that there is no such entries in the revenue records, it has come to the conclusion that it cannot be said that Basavegowda had no absolute right. As such it has held that Basavegowda had absolute right over the suit properties. Apart from Ex. P1 and the admission of the plaintiff that the properties were given for the maintenance of his father, there is no indication as to the fact what has to be done after the death of Basavegowda.
13. Let me now consider the finding of Lower Appellate Court as regards the Will. The Lower Appellate Court referring to the evidence of PW2 -Scribe and also to the evidence of PW3 and also the judgment of the Supreme Court reported in Beni chand's case, AIR 1977 SC 73 has held that as per Section 63 of the Indian Succession Act and also referring to Section 68 of the Evidence Act, accepted the evidence of the Scribe. It has also observed that PW2-Scribe has written the Will as per the say of the testator and that the executant has attested the signature in his presence and there is no discrepancy pointed out in the cross-examination of PW 2 who is an aged person and relying on his evidence, has held that the trial Court has not appreciated the evidence of PWs 2 and 3. It is also opined that they supported the case of the plaintiff and referring to the fact that there is nothing elicited as to the mental state of the executant, has held that the plaintiff has proved that the will has been duly proved. The finding of the trial Court is that the will has not been duly proved.
14. In the decision referred to by the Lower Appellate Court itself in Beni Chand's case, the Supreme Court has come to the conclusion that attestations means the signing of the document to signify that the attestor is a witness to the execution of the document and under Section 63(c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. It is the argument of the respondent's counsel that, as per the ratio laid down in ML Abdul Jabbar Sahib's case cited supra,, wherein Section 3 of the Transfer of Property Act defining the word 'attested' is discussed, has argued that according to the said section, the attesting witness has received a personal acknowledgement of his signature and that the witness has put his signature with an intention to attest the document after knowing that Basavegowda has executed the Will in favour of the plaintiff. The Apex Court in the above cited decision has held the 'as per Section 3 of the Transfer of Property Act, the essential condition of attesting is (1) two or more persons have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature (2) with a view to attest or to bear witness to this fact each one of them has signed the instrument in the presence of the executant. It is essential that the witness must have put his signature animo attested i.e., for the purpose of attesting that he has seen the executant sign or receive from him a personal acknowledgment of his signature. It is seen from the very judgment itself that, it is for the attesting witness to see the attesting of the document or must have knowledge of the acknowledgement of the signature of the executant. In the instant case, as per the evidence of PW 3-attesting witness, although he has stated that at the time of writing of the Will, he was present and that Basavegowda had told him that he will execute the Will in respect of the properties retained by him after partition in favour of his 3rd son-Shankara Gowda he has further stated that he has not seen Basavegowda signing the will and it is his evidence that his is only a hearsay evidence as to the due execution of the document. According to him, PW 2- Sathyanarayana Murthy has told him that Basavegowda has executed the Will and it is also elicited in the cross-examination he alone had signed the Will-Ex.P3 and thereafter he went away and has not seen the other witnesses signing the Will. It is also his evidence that by the time he went to his place in the night, the document was written. From his evidence, it appears this witness is shown to have subscribed his signature and was neither present when the document was written nor he has seen the executant executing his signature. It is also seen as is elicited in his cross-examination that Basavegowda was acting in accordance with the plaintiffs wish and he again says that the plaintiff was acting as per Basavegowda's wishes. It appears this witness was not firm in his stand that plaintiff was prevailing over Basavegowda or Basavegowda was asserting over the plaintiff. More over, although he is an attesting witness, as per his own evidence, neither the Will is written in his presence nor the Will has been duly executed by the executant in his presence. What has been laid down by the Apex Court in this regard in the case of Smt Indubala Bose and Ors. v. Manindra Chandra Bose, : [1982]1SCR1188 is that the onus of proving the will lies on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, the proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus'. It is further held that if the profounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence.
15. In the decision in the case of Ram Piari v. Beagwant and Ors., : [1990]1SCR813 it is held:
Where the testator, a father executed a Will bequeathing all his property in favour of sons of one daughter and disinherited the other daughter who had no sour relations with testator and it was found that even though the testator could sign yet he put his thumb mark on Will and the professional scribe fetched by beneficiary's father admitted that when he reached beneficiary's residence where the Will was executed he found testator covered with quilt with whom he did not talk nor enquire about his health, the finding as to genuineness of Will recorded by the Court by erroneous application of principle of law could be interfered with under Article 136. Anxiety in village to protect landed property or agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts failed to be alive to it then their orders cannot be said to be beyond review.
16. learned Counsel for the appellant has also relied upon a decision in the case of Kundanlal Rallaram v. Custodian, Eavacueeproperty, Bombay, AIR 1961 SC 1361, in which case it is held:
Section 118 lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a Court shall presume inter alia, that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker or the endorser, as the case may be. The phrase 'burden of proof has two meanings-One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law; on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour.
17. In the decision in the case of Vice Chairman, Kendriya Vidyalaya Sangathan and Anr. v. Giridharilal Yadav, (2004)6 SCC 325, it is held that admitted facts need not be proved. Relying on this decision, appellant's counsel argued that there is clear evidence to the effect that the share of the father of the plaintiff was only for his maintenance and an absolute right to alienate the suit property was not given. learned Counsel has also relied upon the decision in the case of Girija Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346 regarding attesting witnesses and on N. Kamalam (Dead) and Anr. v. Ayyasamy and Anr., ILR 2000 KAR 4273 regarding attestation of will wherein it is held that: The effect of subscribing the signature on the part of the scribe cannot be identified to be of same status as that of the attesting witnesses. Signature of the attesting witness as on a document, requires attestation, is a requirement of the statute and thus cannot be equated with that of the scribe. The animus to attest, is not available, so far as the scribe is concerned and he is not a witness to the Will but a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer and it could go against the propounder where both the witness are named in the Will.
18. It appears the Lower Appellate Court has not properly appreciated the spirit beyond Section 63 of the Succession Act and Section 68 of the Evidence Act. The latest decision of the Apex Court is only to the effect that the signature subscribed by the scribe cannot be equated to that of the attesting witness. However, it is noticed in the instant case, as per the evidence on record, although it is stated by PW 3 attesting witness that Basavegowda had told him that he is conveying the property in favour of his 3rd son but, from what is stated in the cross-examination it can be noticed he was neither present at the time of writing the document nor has seen the executant putting his signature on the Will nor has he personal knowledge of the signing of the executant. Under such circumstance, it cannot be held that the will is duly proved.
19. It is also the case of defendants that the suit properties are in their possession and there is also a finding to that effect. However, it is the case of defendants 2 and 3 that they are also entitled to equal share along with the plaintiff and other defendants. The trial Court though held that the Will is not duly proved, it has held that the possession is with the plaintiff. The Lower Appellate Court has held that the Will is duly proved and possession is with defendants 2 and 3.
20. The discussion made by the Lower Appellate Court and also the documents clearly goes to show that the father of the parties had only taken life interest in the suit properties and it was taken by him as is subscribed to him in the palupatti and this fact is admitted by the plaintiff himself. In view of Section 58 of the Evidence Act, there is no burden on the part of the defendant to prove the same. Further, the evidence of PW 3 the attesting witness is not reliable wherein he has stated in his cross-examination that he has not seen the writing of the Will and also the subscribing of signature of the executant. In that view of the matter, it cannot be held that the will is duly proved. The Lower Appellate Court has committed an error in coming to the conclusion that the Will is duly proved. Therefore, the substantial questions of law raised have to be held in favour of the appellants.
For the foregoing reasons, the appeal is allowed. The finding of the Lower Appellate Court that the Will is duly proved is set aside. Further, it is made clear that the suit property should be made available to the plaintiff as well as the defendants equally. Parties to bear their own costs.