H. V. NIRMALA & ANR. versus R. SHARMILA & ANR. on 25 January 2018

[2018] 1 S.C.R. 347

H. V. NIRMALA & ANR.

v.

R. SHARMILA & ANR.

(Civil Appeal No. 881 of 2018)

JANUARY 25, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Will:

Suit for partition by defendant No. 1 against defendant Nos.2 and 3 – Based on a Will dated 20.5.1995 – Compromised – Presentsuit by plaintiff for declaration that the compromise decree was notbinding on her and that she was the lawful owner of the suit scheduleproperties on the basis of Will dated 12.3.1980 – Trial Courtdismissed the suit holding that the plaintiff failed to prove the Willdated 12.3.1980 – High Court decreed the suit – On appeal, held:On the facts of the case, plaintiff proved the Will dated 12.3.1980in accordance with the requirement of s. 68 of Evidence Act – Sincethe plaintiff was not a party to the compromise decree, the samewas not binding on her – Therefore, she is entitled to claim adeclaration in her favour as she is owner of the propertiesbequeathed to her by the testator.

Dismissing the appeal, the Court

HELD: 1. The plaintiff was able to prove the Will dated12.03.1980 in accordance with law and there is no reason to holdotherwise. The Will dated 12.03.1980 was a registered Will. Itwas executed by none other than the father in favour of his minordaughter-plaintiff and minor Son-defendant No.1 born from firstwife. When the father bequeathed his property to his minorchildren then there is nothing unnatural in it. It is naturalbequeath out of love and affection. There is no question of minordaughter and son playing an active role in execution of the Willdated 12.03.1980 in their favour. It is for the simple reason thatboth were too young to indulge in any kind of illegal acts to grabthe suit property. In other words, it was too much to expect fromthe minor children to play any active role in grabbing their father’sproperty and create forged Will. [Para 17][351-D-F]

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A2. It has come in the evidence that the original Will dated12.03.1980 was not in possession of the plaintiff but it was inpossession of defendant No.1. For this reason, the plaintiff filedits certified copy after obtaining from Registrar’s office. Thisexplanation was rightly accepted by the High Court. Since theoriginal Will was not in plaintiff’s possession, its existence andBlegality could be proved by the plaintiff by leading the secondaryevidence. [Para 17][351-F-G]

3. The plaintiff proved the Will dated 12.03.1980 inaccordance with the requirement of Section 68 of the EvidenceAct, 1872 by adducing her own evidence and by examining oneCattesting witness of the Will. Such evidence was sufficient toprove the Will. [Para 17][351-G-H]

4. It is not in dispute that the later Will dated 20.05.1995disclosed by the defendants did not find mention therein the factof execution of first Will dated 12.03.1980 by the testator. TheDWill dated 20.05.1995 should have found reference of the earlierWill dated 12.03.1980 because Will dated 12.03.1980 was aregistered Will and in order to prevail the last Will over the earlierone, the reference of revocation of the earlier Will dated12.03.1980 was necessary in the later Will. It was not so. [ParaE17][351-H; 352-A-B]

5. Since the plaintiff was not a party to the compromisedecree dated 25.01.1997 passed in OS No.7266 of 1996, it wasnot binding on her. Once the Will dated 12.03.1980 is held proved,in accordance with law, the the plaintiff becomes entitled to claimFa declaration in her favour that she is the owner of the propertiesbequeathed to her by the testator as specified in the Will. [Para17][352-B-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 881 of2018.

GFrom the Judgment and Order dated 20.09.2011 of the High Courtof Karnataka at Bangalore in RFA No. 1128/2008.

R. S. Hegde, Girish Anathamurthy, Mrs. Farhat Jahan Rehmani,Mrs. Vaijayanthi Girish, Advs. for the Appellants.

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H. N. Nagmohan Das, Sr. Adv., Shekhar G. Devasa, ManishTiwari, Naveen Nagarjuna, M/s. Devasa & Co., S. Srinivasan, Advs.for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal arises from the final judgment and order dated20.09.2011 passed by the High Court of Karnataka at Bangalore in RFANo.1128 of 2008 whereby the High Court set aside the judgment of theTrial Court and decreed the suit filed by the plaintiff.

3. In order to appreciate the issues involved in the appeal, it isnecessary to set out the relevant facts hereinbelow.

4. The appellants are defendant Nos. 2 and 3, whereas respondentNo.1 is the plaintiff and respondent No. 2 is defendant No. 1 in the civilsuit, out of which this appeal arises.

5. The dispute is essentially between the family members and itrelates to certain immovable properties originally belonged to the Headof the family known as - Ramaiah. The family tree would be useful toappreciate the issues.

6. Ramaiah Reddy had two wives, first–Smt. Hemavathi and thesecond-Smt Nirmala. Out of the wedlock with first wife–Smt. Hemavathi,one daughter-Sharmila (plaintiff) and a son-Umesh (defendant No.1)were born, whereas out of the wedlock with second wife-Nirmala, oneson- Rakesh Babu (defendant No.3) was born. Hemavathi-the firstwife died on 24.02.1989 and Ramaiah died on 26.11.1995.

7. On 11.10.1995, Umesh (defendant No.1) filed a civil suit beingO.S. No.7266 of 1996 against Nirmala and Rakesh Babu. This suit was A

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Afiled for partition of the properties owned by late Ramaiah Reddy. Itwas based on the Will dated 20.05.1995 said to have been executed byRamaiah in favour of three parties to the suit.

8. The parties compromised the suit and accordingly thecompromise decree was passed on 25.01.1997 without any contest onBmerits.

9. On 04.11.2000, Sharmila - daughter from first wife filed a civilsuit being OS No.7592 of 2000 in the Court of City Civil Judge, Bangaloreagainst Nirmala, Umesh and Rakesh Babu, out of which the presentappeal arises. This suit was for a declaration that the compromise decreeCdated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her;that she is the lawful owner of the properties specified in the scheduleon the basis of the Will dated 12.03.1980 executed by Ramaiah in herfavour.

10. The three defendants filed the written statement. They deniedDthe Will dated 12.03.1980 set up by the plaintiff and supported thecompromise decree obtained by them on 25.01.1997 in O.S. No.7266 of1996. The Trial Court framed the issues. Parties adduced their evidence.The Trial Court, by its judgment and order dated 28.08.2008, dismissedthe suit. It was held that the plaintiff having failed to prove the originalWill dated 12.03.1980, the suit must fail. In other words, the Trial CourtEwas of the view that it is not possible to hold, in the absence of sufficientevidence adduced by the plaintiff, that the Will dated 12.03.1980 is provedin accordance with law.

11. The plaintiff, felt aggrieved by the dismissal of her suit, filedfirst appeal before the High Court of Karnataka, out of which this appealFarises.

12. By the impugned judgment/decree, the High Court allowedthe appeal, set aside the judgment/decree of the Trial Court and decreedthe plaintiff’s suit. The High Court held that the plaintiff was able toprove the Will dated 12.03.1980 in accordance with law with the evidenceGadduced by her and hence she was entitled for a declaration as claimedby her in the suit relating to the suit properties. Defendant Nos. 2 and 3felt aggrieved by the impugned judgment of the High Court and filed thisappeal by special leave in this Court.

13. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in the appeal. In our view, theHigh Court appears to be right in its reasoning and the conclusion.

14. The fate of this appeal depends upon one question, namely,whether the Plaintiff (Respondent No.1 herein) was able to prove theWill dated 12.03.1980 in accordance with law.

15. As mentioned above, the Trial Court decided the questionagainst the plaintiff whereas the first Appellate Court decided the questionin plaintiff’s favour.

16. Having examined, we are inclined to concur with the reasoningof the High Court and accordingly answer the question in favour ofrespondent No.1, i.e., the plaintiff and against the appellants (defendantNos. 2 and 3). In other words, we hold that the plaintiff was able toprove the Will dated 12.03.1980 in accordance with law and there is noreason to hold otherwise. This we say for the following reasons.

17. First, the Will dated 12.03.1980 is a registered Will. Second, itwas executed by none other than the father-Ramaiah in favour of hisminor daughter-Sharmila and minor Son-Umesh born from first wife.Third, when Ramaiah-the father bequeathed his property to his minorchildren then we find nothing unnatural in it. In our opinion, it is anatural bequeath out of love and affection. Fourth, there is no questionof minor daughter and son playing an active role in execution of the Willdated 12.03.1980 in their favour. It is for the simple reason that bothwere too young to indulge in any kind of illegal acts to grab the suitproperty. In other words, it was too much to expect from the minorchildren to play any active role in grabbing their father’s property andcreate forged Will. Fifth, it has come in the evidence that the originalWill dated 12.03.1980 was not in possession of the plaintiff but it was inpossession of defendant No.1. For this reason, the plaintiff filed itscertified copy after obtaining from Registrar’s office. Sixth, thisexplanation was accepted by the High Court and, in our opinion, rightly.Seventh, since the original Will was not in plaintiff’s possession, itsexistence and legality could be proved by the plaintiff by leading thesecondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980in accordance with the requirement of Section 68 of the EvidenceAct,1872 by adducing her own evidence and by examining one attestingwitness of the Will. In our view, such evidence was sufficient to provethe Will. Ninth, it is not in dispute that the later Will dated 20.05.1995

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Adisclosed by the defendants did not find mention therein the fact ofexecution of first Will dated 12.03.1980 by the testator. In our view, theWill dated 20.05.1995 should have found reference of the earlier Willdated 12.03.1980 because Will dated 12.03.1980 was a registered Willand in order to prevail the last Will over the earlier one, the reference ofrevocation of the earlier Will dated 12.03.1980 was necessary in theBlater Will. It was not so. Tenth, since the plaintiff was not a party to thecompromise decree dated 25.01.1997 passed in OS No.7266 of 1996, itwas not binding on her. Lastly, once the Will dated 12.03.1980 is heldproved, in accordance with law, the plaintiff becomes entitled to claim adeclaration in her favour that she is the owner of the propertiesCbequeathed to her by the testator as specified in the Will.

18. In the light of the foregoing discussion, we hold that the HighCourt was right in holding that the plaintiff was able to prove the Willdated 12.03.1980 and that the Will dated 20.05.1995 and the decreedated 25.01.1997 passed in O.S. No.7266 of 1996 are not binding on theDplaintiff.

19. As a consequence thereof, we find no merit in this appeal,which fails and is accordingly dismissed.

EKalpana K. Tripathy

Appeal dismissed.

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