Kum Harshada S Vs. Sri Mariyappa - Court Judgment

SooperKanoon Citationsooperkanoon.com/1235280
CourtKarnataka High Court
Decided OnApr-05-2024
Case NumberRSA 760/2018
JudgeH.P.SANDESH
AppellantKum Harshada S
RespondentSri Mariyappa
Excerpt:
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1 in the high court of karnataka at bengaluru r dated this the5h day of april, 2024 before the hon'ble mr. justice h.p. sandesh r.s.a. no.760/2018 (dec/inj) between:1. . kum. harshada s., d/o shivalingegowda aged about26years r/at no.153, 2nd cross k.s.r.t.c.layout uttarahalli main road bengaluru-560061. … appellant (by sri nishanth a.v., advocate) and:1. . sri mariyappa s/o late honnegowda aged about60years r/at nunnur village virupakshipura hobli channapatna taluk ramanagara district-562160. … respondent (by sri m.c. jayakirthi, advocate) this r.s.a. is filed under section100of cpc, against the judgment and decree dated101.2018 passed in r.a.no.2/2015 on the file of the i addl. district and sessions judge, ramanagara, allowing the appeal and setting aside the judgment and decree.....
Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE5H DAY OF APRIL, 2024 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.S.A. NO.760/2018 (DEC/INJ) BETWEEN:

1. . KUM. HARSHADA S., D/O SHIVALINGEGOWDA AGED ABOUT26YEARS R/AT NO.153, 2ND CROSS K.S.R.T.C.LAYOUT UTTARAHALLI MAIN ROAD BENGALURU-560061. … APPELLANT (BY SRI NISHANTH A.V., ADVOCATE) AND:

1. . SRI MARIYAPPA S/O LATE HONNEGOWDA AGED ABOUT60YEARS R/AT NUNNUR VILLAGE VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK RAMANAGARA DISTRICT-562160. … RESPONDENT (BY SRI M.C. JAYAKIRTHI, ADVOCATE) THIS R.S.A. IS FILED UNDER SECTION100OF CPC, AGAINST THE

JUDGMENT

AND DECREE DATED101.2018 PASSED IN R.A.NO.2/2015 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE

JUDGMENT

AND DECREE DATED212.2014 PASSED IN O.S.NO.217/2012 ON THE FILE OF2THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATTANA, RAMANAGAR DISTRICT. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON1903.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

Heard the learned counsel appearing for the appellant and also the counsel appearing for the respondent.

2. This appeal is filed challenging the judgment and decree dated 10.01.2018 passed in R.A.No.2/2015 on the file of the I Additional District and Sessions Judge, Ramanagara.

3. The factual matrix of the case of the appellant- plaintiff before the Trial Court is that the suit schedule property was originally belonged to her grandfather by name Nunnuru Honnegowda who had acquired the same under registered sale deed dated 01.05.1974. Thereafter, her grandfather executed a registered Will in her favour on 3 22.09.2010 and her grandfather died on 28.02.2011. It is contended that after the death of her grandfather, she became an absolute owner of the suit schedule property as per the Will. The defendant being her paternal uncle acquired wrongful possession of the suit schedule property by illegal means and forcibly put up construction of a building and that the defendant has refused to accept her title and handover the possession of the suit schedule property. Hence, the suit is filed for the relief of declaration, possession and for mandatory injunction.

4. In pursuance of suit summons, the defendant appeared and filed the written statement contending that the suit schedule property though was purchased in the name of his father Honnegowda, the same has been joint family property and as such his father had no absolute right to bequeath the same in favour of the plaintiff by executing any Will and that he has raised 40 coconut trees and put up pump-shed and that he has been in a possession and 4 enjoyment of the suit schedule property since his childhood and that his father has suffered from paralytic stroke on his right side of the body and he was not able to speak and was not having good eye sight and hearing since from 16 years prior to his death and that the father of the plaintiff by inducing his father Honnegowda to taking him to the hospital might have taken to the Sub-Registrar office and fraudulently got executed the Will to grab the suit schedule property and that he has put up the construction about eight years back and hence, the suit is not maintainable.

5. Based on the pleadings of the parties, the Trial Court framed the Issues Nos.1 and 2 shifting the burden on the plaintiff to prove that whether she is the absolute owner of the suit schedule property and whether the defendant has illegally constructed a building in the suit schedule property without her consent and the Trial Court has framed Issue No.3 shifting the burden on the defendant to prove that the suit schedule property is an ancestral 5 property. The plaintiff in order to prove her case, examined herself as PW1 and two attesting witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P24. On the other hand, the defendant examined himself as DW1 and also examined three more witnesses as DW2 to DW4 and got marked the documents at Ex.D1 to D40. The Trial Court after considering both the oral and documentary evidence answered Issue Nos.1 and 2 as affirmative in coming to the conclusion that the plaintiff has proved that she is the absolute owner of the suit schedule property and the defendant has illegally constructed the building in the said property without her consent and answered Issue No.3 as negative in coming to the conclusion that the suit schedule property is not an ancestral property as contended by the defendant and granted the relief of declaration declaring that the plaintiff is the absolute owner of the suit schedule property and she is entitled for the possession of the same and directed the defendant to handover the 6 vacant possession of the suit schedule property within one month and also directed the defendant to get the building situated in the suit schedule property demolished by way of mandatory injunction.

6. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court in R.A.No.2/2015. The grounds urged in the appeal that the Trial Court has committed an error in coming to the conclusion that the suit schedule property is not an ancestral property and also fails to take note of the material contradictions found in the evidence of the plaintiff witnesses and the Trial Court fails to take note of the admission of the plaintiff and the findings of the Trial Court is erroneous. Based on these grounds, the First Appellate Court also formulated the point that whether the appellant proves that the impugned judgment and decree passed by the Trial Court is contrary to the law, facts, evidence and committed an error in evaluating the evidence of the parties 7 and whether it requires interference. Having reconsidered the material on record found that the Trial Court has committed an error and answered Point No.1 as affirmative and reversed the finding of the Trial Court by allowing the appeal and set aside the judgment and decree of the Trial Court. Hence, the present appeal is filed before this Court.

7. This Court, having considered the grounds urged in the second appeal and also on perusal of the material available on record, framed the following substantial questions of law: (i) Whether the Lower Appellate Court was justified in holding that the suit schedule property is joint family property of Late Honnegowda on the ground that the Plaintiff has not proved that the suit schedule property is self acquired property of Late Honnegowda?. (ii) Whether the Lower Appellate Court was justified in holding that the suit schedule property is the joint family property in spite of the Defendant having not 8 discharged his burden to prove as required under law?. (iii) Whether the Lower Appellate Court was justified in holding that the Plaintiff has failed to establish the due execution of the Will (Ex.P4) by Honnegowda and further, failed to prove due attestation of the same as contemplated under Section 68 of the Indian Evidence act?. (iv) Whether the Lower Appellate Court was justified in allowing the appeal of the Defendant and thereby setting aside the judgment and decree of the Hon'ble Trial Court and consequently, dismissing the suit of the Plaintiff in spite of admission of the D.W.1 (Defendant) in his cross examination that the suit schedule property is the self acquired property of Honnegowda?.

8. This Court having considered the grounds urged in the appeal as well as the substantial questions of law framed by this Court has to consider the material available on record since there is a divergent finding. 9

9. The counsel for the appellant in his arguments vehemently contend that suit is filed for the relief of declaration, possession and for mandatory injunction. The Trial Court granted the relief of declaration, possession and for mandatory injunction. The First Appellate Court reversed the finding of the Trial Court without looking into the material available on record. The counsel would vehemently contend that suit schedule property belongs to Honnegowda who is the grand father of plaintiff and the same was acquired vide sale deed dated 01.05.1974 and grand father had executed the Will in favour of the plaintiff vide registered Will dated 20.09.2010. The counsel also would vehemently contend that the said Honnegowda passed away on 28.02.2011 i.e., after 5 ½ months after the execution of the Will. It is contended that suit is also filed contending that suit schedule property is a self acquired property of grand father and he had executed the Will. In order to prove the Will, plaintiff also examined two 10 witnesses PW2 and PW3 are the attesting witnesses. It is the contention of the defendant in the said suit that suit schedule property is joint family property. The counsel would vehemently contend that the First Appellate Court reversed the judgment of the Trial Court only on the ground that the plaintiff has not established the same as self acquired property. The counsel would vehemently contend that when the defendant took the specific defense that the same is a joint family property burden is on the defendant to prove the same as joint family property. The counsel would vehemently contend that Ex.P5 – sale deed of Honnegowda is produced and Ex.P4 - Will is also produced and the same is a registered Will. The evidence of PW2 and PW3 is very clear that both of them have attested the Will and the executant has signed the document in their presence. The defendant has categorically admitted in the cross-examination that suit schedule property is a self acquired property of the said Honnegowda in his evidence, 11 the same has been taken note of by the Trial Court. There is a clear admission on the part of DW1 and the reasoning given by the Appellate Court is erroneous. The First Appellate Court even not discussed the admission as it is a self acquired property. The counsel also would vehemently contend that the First Appellate Court while reversing the finding of the Trial Court even not touched upon the evidence of defendant witnesses and without looking into the evidence of defendant witnesses and only by considering the evidences of PW1 to PW3 passed the judgment, the same is one sided discussion. The counsel in his argument, vehemently contend that sale deed clearly discloses that it is a property of Honnegowda and the said sale deed has not been challenged and though denied the very execution of the Will by DW1 and DW2 who are interested witnesses and denied the photograph of their father in the Will, but the other witness who has been examined as PW3 categorically admitted that the said 12 photograph belongs to the Honnegowda. It is contended that registered Will though disputed and when there is an admission on the part of DW1 that it is a self acquired property and though sister has been examined as DW2 and she has not challenged the Will and only challenge is made by the defendant.

10. The counsel also in support of his argument he relied upon the judgment reported in (2003) 10 Supreme Court Cases 310 in case of D.S.Lakshmaiah and another V/s Balasubramanyam and another and brought to notice of this Court the principles laid down in the judgment that burden to prove the property to be joint lies on the person who asserts but if he proves that the family possess sufficient nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint and onus would shift on the person claiming to be self acquired. The counsel also would vehemently contend that no material placed before the 13 Court. Though burden is on him, he has not proved the same. On the other hand, there is a clear admission on the part of the DW1 that the property is a self acquired property. The counsel also brought to notice of this Court paragraph No.9 wherein discussion was made where it is established that family having other joint family property and nucleus from which all his further acquisitions, then only presumption will lies. In order to prove the said factum of joint nucleus and other properties are concerned, not placed any material. The counsel also brought to notice of this Court paragraph No.18 wherein held that the legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being 14 joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

11. Per Contra, the counsel appearing for respondent would vehemently contend that the signature of Honnegowda i.e., LTM has not attested by witnesses. The counsel would vehemently contend that signature of Hanumesh is not found and his signature is different in the deposition. The counsel would vehemently contend that other witnesses also not attested the signature of executant. The counsel would contend that Ex.D14 which is produced before the Court is of the year 2010, it was mentioned as 80 years old and he would be 95 years at the time of execution of Will. The counsel also would vehemently contend that defendant only taken care of the executant. The counsel also would vehemently contend that no reason for excluding other family members while 15 executing the Will, the recitals in the Will is against the chief evidence of PW1. The PW1 categorically in the affidavit itself stated that the executant was not residing along with them. The counsel also brought to notice of this Court that name of one Puttaraju was mentioned in the document, but PW2 surprisingly has signed the document registered Will and no explanation. The counsel also would vehemently contend that how Will comes to their possession has not been stated in the plaint, but only in the chief evidence an improvement is made that the same is found in the trunk. The counsel would vehemently contend that the very execution of registered Will is in a suspicious circumstances, the same has not been explained by the plaintiff. It is also clear that no difference between the grand father and the defendant and the same is admitted and joint family having the property is also not in dispute. The said executant Honnegowda is not having any other income other than the agriculture and having the property 16 in the family is not in dispute. When such being the material available on record, the First Appellate Court rightly appreciated the material available on record and rightly comes to the conclusion that property is not a self acquired property and also rightly comes to the conclusion that the document Will came into existence in a suspicious circumstances.

12. The counsel in support of his argument he relied upon the judgment reported in AIR1959SC443in case of H.Venkatachala Iyengar V/s B.N.Thimmajamma and others and counsel brought to notice of this Court paragraph No.19 wherein an observation is made that there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks form the death of the testator, and so, when it is propounded or produced before the Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element 17 of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that Will was signed by the testator, that the testator at the relevant time was in as sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 18

13. The counsel also relied upon the judgment reported in (2021) 11 SCC209in case of Kavita Kanwar V/s Pamela Mehta and others and brought to notice of this Court paragraph Nos.19 to 26 wherein discussion made with regard to the contentions made in the said appeal by the respondent Nos.1 and 2 and proof and satisfaction of the Court and proving of the Will and extrinsic evidence inadmissible in case of patent ambiguity and deficiency and proof of execution of document required by the law to be attested under Section 68 of the Act. The counsel also brought to notice of this Court paragraph Nos.36, 37 and 39 wherein discussed with regard to answering suspicious circumstances when there is thick cloud of suspicious circumstances.

14. The counsel also relied upon the judgment in Civil Appeal No.3351/2014 dated 21.09.2023 of the Apex Court in case of Meena Pradhan and others V/s Kamla Pradhan and another, the counsel brought to 19 notice of this Court paragraph No.8 wherein also discussion was made that whenever there exists any suspicion as to the execution of Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last Will. In such cases, the initial onus on the propounder becomes heavier and also in paragraph No.9 the test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances.

15. The counsel also in support his contention relied upon the judgment reported in (2012) 8 Supreme Court Cases 148 in case of Union of India V/s Ibrahim Uddin and another with regard to evidence without pleadings and brought to notice of this Court paragraph No.77 and 85.6 wherein an observation is made that a decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of pleadings in that respect. The 20 Court cannot travel beyond pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored.

16. The counsel also relied upon the judgment reported in (1996) 2 Supreme Court Cases 491 in case of Surendra Kumar V/s Phoolchand (Dead) Through LRS’ and Another and brought to notice of this Court paragraph No.6 wherein discussion is made that there is no material to establish that consideration money for the property was paid by the appellant from out of his separate funds. It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or 21 admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that he property was acquired without the aid of the joint family.

17. The counsel appearing for the appellant in reply to the arguments of respondent’s counsel, he vehemently contend that the very contention that attesting witness Hanumesh has not signed cannot be accepted and his signature has been marked as Ex.P4(a) and even not denied the same in the cross-examination of PW2 and attesting witnesses signatures are marked as Ex.P4(a) as well as Ex.P4(b). Hence, the contention of the counsel cannot be accepted. The counsel also would submits that the finding of the appellate Court is not based on the material available on record and while re-appreciating the 22 evidence available on record, even not considered the evidence of DW1 to DW4 and without reference of DW1 to DW4 and the First Appellate Court exercised its powers without looking into the both oral and documentary evidence available on record. Hence, it requires interference.

18. Having heard the arguments of appellant’s counsel and also the counsel appearing for the respondent, this Court has to consider the material available on record, whether the First Appellate Court committed an error in appreciating both oral and documentary evidence available on record. The 1st substantial question of law is with regard to whether the lower appellate Court was justified in holding that the suit schedule property is joint family property of late Honnegowda on the ground that the plaintiff has not proved that the suit schedule property is self acquired property of late Honnegowda and whether the lower appellate Court was justified in holding that the suit 23 schedule property is the joint family property inspite of the defendant having not discharging his burden to prove as required under law as framed the 2nd substantial question of law by this Court and so also the 4th substantial question of law framed by this Court is whether the appellate Court is justified in allowing the appeal of the defendant and thereby setting aside the judgment and decree of Trial Court and consequently dismissing the suit of the plaintiff inspite of admission of the DW1 in his cross-examination that the suit schedule property is a self acquired property of Honnegowda. These 3 substantial question of law i.e., 1, 2 and 4 revolves upon the respective contentions of the plaintiff and defendant in terms of the pleadings of the parties. This Court has to consider the pleading of the plaint in O.S.No.217/2012 wherein the plaintiff claims that Honnegowda who is the grand father of the plaintiff had executed the Will on 20.09.2010 in respect of land bearing Sy.No.7/1 of Nannur village, measuring 2 acres 30 guntas. 24

19. It is also important to note that specific pleading is made in the plaint in paragraph No.3 that her grand father Honnegowda has purchased the suit schedule property on 01.05.1974 and the same is a self acquired property of Honnegowda. It is also contended that said Honnegowda assigned all other properties to his sons and daughters and bequeathed his suit schedule property to his grand daughter that is plaintiff and also specific pleading is made that since the defendant residing in the village wanted to take away all the properties of Honnegowda as plaintiff’s father who resides at Bengaluru and working in KSRTC department and knowing the intention of the defendant, plaintiff’s grand father bequeathed the suit schedule property in her favour. Having perused this averment, it is clear that a Will is executed and property is a self acquired property of Honnegowda and also an allegation is made against the defendant that he had constructed a temporary house in the suit schedule 25 property without permission of the plaintiff after the death of Honnegowda and the same is also liable to be demolished issuing mandatory injunction, this averment made in the plaint is resisted by the defendant by filing written statement wherein he took the specific contention denying the very execution of the Will and contend that Will is fraudulently got up in collusion, misrepresentation and undue influence by the plaintiff, her father and with their henchmen and the executant was aged about more than 90 years and not having good health and understanding and with an ulterior motive, the same is not binding on the defendant. It is contended in the paragraph No.3 of the written statement that the said property is the ancestral joint family property of this defendant and his father Honnegowda acquired by the nucleus of ancestral property and hard earning of the defendant and other properties, sites and house properties at Bengaluru. The plaintiff is not the absolute owner and not having any right or title. The 26 defendant has been in continuous possession of the same. The written statement is also amended in paragraph Nos.9(a) and 9(b). The Trial Court has also framed the issues that whether the plaintiff proves that she is the owner of the suit schedule property and whether the illegal construction by the defendants in the suit schedule property without her consent and whether the defendant proves that he suit schedule property is an ancestral property and he is also having right. The Trial Court while considering these issues considered the issue Nos.1 and 3 together since plaintiff claims that she is the absolute owner in pursuance of the Will and defendant also claims that it is an ancestral property. It is the contention of the plaintiff that the same is a self acquired property of said Honnegowda and he had executed the Will. The Trial Court while considering issue Nos.1 and 3 together taken note of the evidence available on record i.e., Ex.P5 - sale deed and Ex.P5 is very clear that the said property is purchased by the Honnegowda and also 27 taken note of the contention of the defendant that the same is a joint family property. In order to prove that the same is a joint family property, defendant has not produced any documentary evidence and also Trial Court taken note of admission on the part of DW1, in his cross-examination he has categorically admitted that the suit schedule property is his father’s self acquired property and taken note of the said admission and comes to the conclusion that it is clear that defendant has admitted that the suit schedule property is self acquired property of his father. The Trial Court also taken note of Section 58 of the Indian Evidence Act and any fact admitted by the other side need not be proved. When there is a clear admission on the part of DW1, he himself stated that it is a self acquired property and his very contention that the said property is acquired out of joint family nucleus and in order to rebut the said admission also, no material is placed before the Trial Court that joint family having joint nucleus and out of that joint nucleus 28 only, purchased the property. No doubt the respondent’s counsel would vehemently contend that Honnegowda was not having any other income other than the agricultural income. When the admission was given that it was a self acquired property of his father, the said contention cannot be accepted. Once an admission is given and the same is a self acquired property, it cannot be considered as it is a joint family property. No doubt principles laid down in the judgments referred supra by the respondent’s counsel in case of Union of India V/s Ibrahim Uddin and another counsel relied upon without pleading, if any evidence is considered, the same cannot be relied. The very same judgment also the Apex Court held that under Section 58 applicability, admission of fact must be during trial, before or at the hearing, procedure under Order 12 of CPC must also be followed wherein also discussed with regard to admission and evidentiary value, particularly admission, held is substantive evidence and though not conclusive can 29 be decisive, it may operate as estoppel in certain circumstances, the admission must be clear, unambiguous and relevant, maker of admission should be given opportunity under cross-examination to tender his explanation, failure of a party to prove his defense does not amount to admission. No doubt in the pleading, not pleaded with regard to how they comes to know about the Will, but in the evidence it is stated that they found the Will in the trunk. But, in the case on hand when clear admission is found and admission is unequivocal and the same is found in the cross-examination of DW1 that suit schedule property is the self acquired property of his father, now he cannot contend that the said admission is only a stray admission and admission is unequivocal and he categorically admitted in the end of his cross-examination that suit schedule property is a self acquired property of his father and also he categorically admits that when the property was purchased by his father he was aged about 15 years and this 30 admission also takes away the very contention of the defendant that family was having joint nucleus but he contend that he took the responsibility of the house when he was aged about 10 years and this admission is very clear that with an intention to create this property as joint family property, he has deposed that at the age of 8 years he was doing agriculture and at the age of 10 years he took the responsibility of the family and also even he did not identify the photograph of his father in Ex.P4 and when specific suggestion was made that the said photograph belongs to his father, but he says that the same does not appears as his father and the Court has to take note of conduct of the defendant.

20. It is the case of the plaintiff that the suit schedule property is self acquired property of the said Honnegowda and the Appellate Court also while considering whether it is a self acquired property or joint family property and inspite of admission on the part of defendant 31 has not discussed the evidence of DW1 and DW2 though they denies the photograph of their father Honnegowda as well as the admission on the part of the DW1 and the discussion of the Appellate Court is very silent about the evidence of DW1 to DW4 and without any discussion and also even not touched upon the admission on the part of DW1 who has given that the property is the self acquired property of the father, the same is also extracted in the judgment of the Trial Court in paragraph No.7. Inspite of Trial Court has discussed the same in paragraph No.7, the First Appellate Court not taken note of the same. In paragraph No.7(e) also Trial Court comes to the conclusion that no need to prove the admitted fact in view of Section 58 of Indian Evidence Act but, the First Appellate Court has committed an error in going beyond the admission of DW1 and the same is a futile exercise made by the First Appellate Court while reversing the finding of the Trial Court in coming to the conclusion that the same is a joint family 32 property. When there is a clear admission on the part of the DW1 that it is a self acquired property, it cannot be considered as it is joint family property and the First Appellate Court not justified in holding that suit schedule property is a joint family property inspite of defendant having not discharging his burden to prove as required under law. No doubt when there is an admission, the same has to be rebutted. In order to rebut the same also, no material is placed before the Trial Court to show that it is a joint family property and hence, the First Appellate Court committed an error in reversing the finding of well reasoned order passed by the Trial Court in coming to the conclusion that the said property is a joint family property. No doubt the First Appellate Court discussed in extracting Section 258 of Hindu Law and also Section 231 of Hindu Law, the same is against the admitted fact. Hence, substantial question of law Nos.1, 2 and 4 answered as affirmative that the First Appellate Court committed an error. 33

21. The 3rd substantial question of law is whether the Lower Appellate Court was justified in holding that the plaintiff has failed to establish the due execution of the Will (Ex.P4) by Honnegowda and further, failed to prove due attestation of the same as contemplated under Section 68 of the Indian Evidence Act. In order to prove the Will, the plaintiff mainly relied upon document of Ex.P4-Will and relied upon the two attesting witnesses who have been examined as PW2 and PW3. The main contention of the counsel appearing for the respondent that LTM was not attested by any of the witnesses and signature of Hanumesh is not found and signature is different in deposition as well as in the Will and other witnesses are also not attested signature of executant.

22. In support of his contention also he relied upon the judgment of B.N.Thimmajamma’s case which is referred above and so also the case of Kavita Kanwar referred above and also the Civil Appeal No.3351/2014. 34 No doubt the principles are very clear that if any suspicious circumstances, the same has to be explained by the propounder of the Will and also the propounder will be called upon to show by the satisfactory evidence that Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind and that he understood the nature and effect of depositions and put his signature to the document of his own free will. The recent judgment of the Apex Court in Civil Appeal also it is very clear in paragraph Nos.8 and 9, it is the responsibility of the propounder to remove the all suspicious circumstances, so also in case of Kavita Kanwar with regard to proving of Will, necessity of removing legitimate suspicion.

23. Having considered the principles laid down in the judgment this Court has to consider the evidence of PW2 and PW3 who are the attesting witnesses. No doubt PW2 in his evidence he categorically says that the other attesting 35 witness called him to attest the document and also his evidence is very clear that when he went there, the very executant was instructing the scribe of the document and after having comes to know about the contents of the Will only, he had put his signature and he also requested him to put his signature and at his request only, he signed the same and also he categorically admits that PW3 also attested the said document. In the cross-examination, nothing is elicited and even though counsel disputes he has not signed the document, but he categorically admits his signature as Ex.P1(a). During the cross-examination even did not suggests that he did not sign the document of Ex.P4 and though contend that his signature is not found and the same is marked as Ex.P1(a) on Ex.P4. When he identifies the signature, the same has not been denied during the course of cross-examination. Now, he cannot contend that he has not signed the document. The counsel would vehemently contend that signature of executant has not 36 been attested. No doubt on perusal of Ex.P4, but executant has put his thumb impression on the Will and specific evidence of PW3 before the Court also that he requested the PW2 to come and attest the document and his evidence also very clear that executant had signed the document in his presence and also executant categorically stated that he is going to Will away the property to his grand daughter, the same is also a self acquired property and his signature is also marked as Ex.P4(b) and in the cross-examination of Ex.P4(b) also not denied as like the signature of PW2. Now, they cannot contend that they are not the attesting witnesses. No doubt PW3 admits that the executant is an illiterate and the fact that he was illiterate is also not in dispute that he had put the thumb impression. It is also important to note that when the defendant examined himself as DW1 even he had gone to the extent of denying the photographs of his father and he gives a reply that the same not appears to be his father photograph and the 37 document is registered document. It is also important to note that other witness is also PW2 who is also the sister of DW1 and his daughter also given to the DW1. Both are interested witnesses and also daughter was also gone to the extent of denying the photograph of their father in the cross-examination but, the other witness who has been examined as DW3 in support of case of the defendant he categorically admits that the said photographs were found in the Ex.P4 belongs to Honnegowda and when such admission on the part of which DW3 that the same is the photograph of executant and also Court has to take note of conduct of the DW1 and DW2 only with an intention to deny the document of Ex.P4, gone to the extent of denying the photograph of their own father. Nothing is elicited in the cross-examination of PW2 and PW3 to disbelieve the case of the plaintiff and no contradiction in their evidence. When such material is available before the Court, the very observation made by the First Appellate Court that Section 38 63 and Section 68 has not been complied is an erroneous approach. I have already pointed out that the evidence of DW1 to DW3 has not been touched upon by the First Appellate Court while reversing the judgment of the Trial Court. No doubt the Trial Court taken note of Section 68 and when the attesting witnesses have been examined and the document is also registered document and with regard to the due execution of the Will is concerned, propounder has examined two attesting witnesses before the Court. Merely the contention of the defendant’s counsel that he has aged about 90 years, cannot be a ground to disbelieve the case of plaintiff.

24. I have already pointed out that DW2 is none other than the elder daughter of Honnegowda. It is clear that she got married her daughter with the defendant and hence, DW2 is an interested witness. But she claims that her father also had suffered Paralytic stroke but she categorically admits that her father was not taken to the 39 Government hospital for treatment and no document is placed before the Court either by the defendant or by the witnesses that treatment was provided to their father as he was suffering from paralytic stroke. I have already pointed out that DW3 categorically deposed that Honnegowda was talking even three to four months prior to his death and the Will was executed in the month of September 2010 itself and he died in the month of February 2011 and suit was filed in the year 2012 and hence, the very contention of the defendant that he was not having good health and he had suffered stroke was not been substantiated by the defendant and the same has been considered by the Trial Court while appreciating both oral and documentary evidence placed on record. The Trial Court in detail discussed the evidence available on record. No doubt, in the evidence of PW1 she claims that the executant was not staying along with her. But reason given in the Will that the executant was having love and affection towards her and 40 also says that she is taking care of him and except the same, nothing is found in the evidence of PW1 and to take care of him need not be residing along with him. But the First Appellate Court committed an error in not believing the evidence of PW2 while considering the minor contradictions with regard to presence of the beneficiary. PW2 categorically says that except the attesting witnesses and said Honnegowda, no other were found in the Sub- Registrar office and the First Appellate Court given more credence to the evidence of PW3 considering the minor contradictions and the very finding of the First Appellate Court is erroneous and even not discussed the evidence of defendant witnesses except discussing the evidence of PW1 to PW3 and First Appellate Court without analyzing the evidence of witnesses of defendant and without considering the admission given by DW1, DW2, DW3, reversed the finding of the Trial Court and one sided appreciation of evidence exclusively PW1 to PW3. 41

25. The DW3 has categorically admits in the cross- examination that prior to his death even 4-5 months, the executant was having sound state of health and also though defendant contend that he was not having sound state of mind and also he was suffering from paralytic stroke. In order to substantiate the same, nothing is placed on record before the Court that he was not having sound state of mind. Hence, the very approach of the First Appellate Court is erroneous and erroneously comes to the conclusion that plaintiff fail to establish that it was duly attested as contemplated under Section 63 of Indian Succession Act and regarding granting of mandatory injunction is concerned, it is the contention of the defendant that he had put up the construction of the house even prior to 8 years of the death of his father. In proof of the same he has adduced the oral evidence of DW2 and DW4. But on perusal of Ex.P21 and Ex.P22, it gets clear that the building in question was under construction as on 20.11.2011 and it 42 was roofed on 11.08.2013 as per Ex.P23 and plastering was made subsequent to 20.11.2011 and 11.08.2013. There is no contrary document evidencing the part of the defendant to show that the same was constructed prior to 8 years of death of Honnegowda. Under the circumstances the contentions of the defendant in this regard cannot be accepted and his contentions are falsified in view of Ex.P21 to Ex.P23. Since the plaintiff is the absolute owner of the suit schedule property in terms of the Will and hence the plaintiff is entitled for possession of the suit schedule property. The alleged construction of the house is illegal and without the permission of the plaintiff as contended, the said building requires to be demolished and the possession of the suit schedule property requires to be handed over to the plaintiff apart from order of declaration of title of the plaintiff over the suit schedule property by virtue of Will. The same is considered by the Trial Court while answering the issue No.4 on considering the material 43 available on record. There is no any suspicious circumstances as contended and the evidence of DW3 is against the defendant even to the sound state of mind. The document is also registered document and hence the judgment relied upon by the defendant’s counsel regarding suspicions also not applicable to the facts of the case as there is no suspicious circumstances. Hence, the First Appellate Court committed an error and hence I answered substantial question of law as affirmative that the appellate Court committed an error that the attestation not proved without looking into the evidence of PW1 to PW3 and DW1 to DW3 and the evidence of DW3 supports the case of plaintiff.

14. In view of the discussions made above, I pass the following:

ORDER

(i) The Second Appeal is allowed. 44 (ii) The judgment and decree passed by the First Appellate Court in R.A.No.2/2015 dated 10.01.2018 is hereby set aside. Consequently, the judgment and decree of the Trial Court passed in O.S.No.217/2012 is restored. (iii) The defendant is directed to demolish the constructed portion made in the suit schedule property and handover the vacant possession of the same in favour of the plaintiff within a period of two months from the date of this order. If the respondent- defendant failed to do so within a period of two months, the plaintiff is at liberty to take possession in accordance with law. Sd/- JUDGE RHS