Mallappa Gurulingappa Kameri Vs. Neelawwa Malappa Kameri - Court Judgment

Excerpt:
- indian succession act (39 of 1925), section 59 & 63: [a.n.venugopala gowda, j] proof of execution of will held, when the genuineness /execution of the will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. hence, to prove the execution of the will, the examination of at least one attesting witness is necessary. however, though a will, ordinarily must be proved, keeping in view the provisions of section 63 of the indian succession act and section 68 of the evidence act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the will and attestation can be considered in the relaxed manner by having recourse to the exceptions provided under sections 69,70 & 71 of the evidence act. mere identifying the handwriting of the testator and signature of the scribe of the will is of no legal consequence in proof of will and does not meet the stipulation under section 69 of the evidence act. on facts held, the will (ex.d1) has neither been proved in terms of section 68 nor section 69 of the evidence act and hence, the courts below are justified in holding that the defendants have failed to prove the due execution of ex.d1 (will) by late narasamma. indian evidence act, 1872 sections 67 to 69: [a.n.venugopala gowda,j] proof of execution of the document-mandatory requirement of section 69 - proof of a document where no attesting witness found held, section 68 of the act lays down the mode of proof of a document. the mandatory requirement is that, at least one of the attesting witnesses should be examined. section 69 provides for proof of a document where no attesting witness is found. the provision of section 69 contemplates that, the handwriting of atleast one attesting witness and the signature of the person executing the document is required to be identified and proved through the witnesses. the proof of handwriting and/or the signature of a scribe is not the stipulation under section 69 of the act. on facts held, the evidence of dw.3, merely identifying the handwriting and also the signature of his father, the scribe of the will is of no legal consequence and does not meet the stipulation under section 69. - 3. the essence of desertion is the abandonment of one spouse by the other for no good cause, and so, there can be no desertion by a wife who lives separately from her husband if in law she is entitled to do so.1. the appellant is the husband who presented a rolled up application for restitution of conjugal rights under section 9 and for judicial separation under section 10 of the hindu marriage act, 1955. the respondent who was accused of desertion is his second wife. 2. the civil judge dismissed the application on the ground that the appellant who had another wife living could not plead desertion. 3. the essence of desertion is the abandonment of one spouse by the other for no good cause, and so, there can be no desertion by a wife who lives separately from her husband if in law she is entitled to do so. 4. when respondent 2 began to live separately from her husband the appellant's first wife was ah've, and, is still living. so, she became entitled to live separately from her husband without impairing her right to claim maintenance from him under section 18(2)(d) of the hindu adoptions and maintenance act, 1956 which reads: '18. maintenance of wife:-- (1) ..... (2) a hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-- ***** (d) if he has any other wife living; ***** the clear implication of this clause which entitles the wife to refuse to live with her husband who has another wife living is that it is not improper for a wife who is not willing to share her husband with another wife to refuse her company to her husband. by doing so, she does not put herself in the wrong since what is allowed by law cannot constitute a matrimonial offence and doe? not make her a deserter, 5. section 18(2)(d) of the hindu adoptions and maintenance act, 1956, is a corollary to section 13(2)(i) of the hindu marriage act, 1955, which reads: '13. divorce.- (1) ..... (2) a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-- (i) in the case of any marriage solemnised before the commencement of this act, that the husband had married again before such commencement or that any other wife of the husband married before such commence-ment was alive at the time of the solemnisation of the marriage of the petitioner:'***** 6. when the respondent was married in the year 1945, her husband's first wife was alive, and so, under this sub-section she could seek .a divorce and also became entitled to live away from her husband when the hindu adoptions and maintenance act subsequently came into force. the exercise of that right is not desertion. 7. but mr. shetty contended that the order made in appeal by the district judge to whom the husband himself preferred an appeal is without jurisdiction since an appeal from the order of the civil judge after the new mysore civil courts act, 1964, came into force, could be preferred only to this court and not to the district judge. 8. the fact that it is so can make no difference since the district judge did not disturb the order of the civil judge, and so, even if his order is ignored, no results which can be useful to the appellant can ensue since he will be where he was when his application was dismissed by the civil judge. 9. so, i dismiss this appeal with costs. 10. appeal dismissed.