DINESH MAHESHWARI,J. -
(1.)By way of this appeal, the plaintiff-appellants have challenged the judgment and decree dated 26.10.2007 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 910 of 2001 whereby, the High Court reversed the judgment and decree dated 12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal in Original Civil Suit No. 56 of 1994.
1.1. The civil suit aforesaid was filed by the plaintiff-appellants for declaration and injunction, essentially with the submissions that they had acquired ownership rights in the suit properties (described in Schedules A to D attached to the plaint) on the basis of a Will dated 20.05.1991 executed by the owner of the said properties Sri Sangappa son of Pampanna Shettar of Koppal; and that a trust created by the defendants on 28.05.1994, in the name "Shri Sangappa Pampanna Gadagshettar Trust, Koppal" in relation to the suit properties, was illegal, void and not binding on the plaintiffs. The contesting defendants i.e., defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while questioning the genuineness of the alleged Will dated 20.05.1991. The defendant No. 7, one of the erstwhile trustees of the said trust, however, admitted and endorsed the claim of the plaintiffs.
1.2. After framing necessary issues and after taking the oral and documentary evidence adduced by the parties, the Trial Court, in its judgment dated 12.09.2001, decided the principal issue relating to the said Will dated 20.05.1991 in favour of the plaintiffs and, while also returning its findings on other necessary issues in favour of the plaintiffs, proceeded to decree the suit with declaration that the trust created by the defendants on 28.05.1994 was not binding on the plaintiffs, particularly in relation to the suit properties; and that the plaintiffs were owners of the suit properties as claimed. The Trial Court also issued injunction against defendant Nos. 1 to 5 that they shall not interfere with the plaintiffs' peaceful possession and enjoyment of the suit properties.
1.3. The judgment and decree so passed by the Trial Court were questioned by the contesting defendants in the High Court by way of the said first appeal. The High Court, in its impugned judgment dated 26.10.2007 proceeded to allow the appeal while reversing the decision of Trial Court on the principal issue relating to the genuineness of the Will in question. The High Court found several unexplained suspicious circumstances as also discrepancies in the Will in question and held that the alleged Will dated 20.05.1991 was not a genuine document. Being aggrieved, the plaintiffs have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND DOCUMENTS AS ALSO THE PROPERTIES INVOLVED
(2.)It is but apparent that genuineness of the Will dated 20.05.1991, said to have been executed by Sri Sangappa son of Pampanna Shettar of Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in question in this case.
(3.)For comprehension of the subject-matter and for effective determination of the questions raised in this appeal, we may take note of the principal persons involved in the matter with their respective roles as also the documents and the properties in question as infra:
3.1. The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal.
He was a businessman and was also the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust questioned in the suit). Late Smt. Mahantamma was his wife.
Undisputedly, both the testator and his wife died in a car accident on 20.05.1994. The testator and his wife did not have any surviving children, as their children had died in infancy and they were issueless on the date of their death.
3.2. The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj, all sons of Basetteppa, claim to be the legatees under the Will in question. They are full-brothers and are grand-nephews of the testator's wife. According to the plaintiffs, they were brought up by the testator and his wife and they were staying with the testator.
3.3. The contesting defendants (Respondent Nos 1 to 4 herein):
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the younger brother of the testator; the defendant Nos. 2 and 3 Smt. Basavannemma and Smt. Siddama are the sisters of the testator; the defendant No. 4 Sri Pampanna son of Basappa and defendant No. 5 Sri Siddanna son of Fakirappa are the nephews of the Testator 1-2.
1 The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and the fact was noted on the cause-title.
2 The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the pendency of this appeal and his legal representatives were brought on record by the order dated 30.03.2015.
3.3.1. The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa and No. 8 Dr. N.S.Gaikwad were joined in the suit for being the members of the trust created by other defendants, which was questioned by the plaintiffs. The defendant No. 7 Sri Veerabasappa was said to be a close associate of the testator in running Gavisiddeshwar College of which, the testator was the Chairman of Governing Body. This defendant was not related to either of the parties; he, however, filed a separate written statement, admitting and endorsing the claim of the plaintiffs 3.
3 The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the trust in question and no substitution was made in his place. The name of defendant No. 7 Veerabasappa was deleted from the array of parties before the High Court on 24.07.2006. The defendant No. 8 has remained on record as respondent No. 5 in this appeal.
3.4. The trust in question: Sri Sangappa Pampanna Gadagshettar Trust:
The defendants created this trust on 28.05.1994 (in the name of the testator) with inclusion of the properties in question, to pursue philanthropic and charitable purposes. The creation of this trust was challenged in the suit.
3.5. Special mention: Sri Gavisiddeshwara Swami, Koppal (Swamiji):
According to the plaintiffs, the testator was a philanthropic and a devotee of Sri Gavisiddeshwara Swami, Koppal 4; and the contested Will was opened in the presence of Swamiji. However, Swamiji was not examined as a witness in this case.
4 Hereinafter also referred to as 'Swamiji'.
3.6. The key witnesses:
PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist the testator in his business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda Hiregowdar:
They are claimed to be the attesting witnesses of the contested Will.
PW-8 Sri Bhusnoormath, Advocate:
He was a friend and advocate of the testator. Allegedly, the testator handed over the contested Will to him in a sealed cover with the instructions that the same was to be opened after his death, only in the presence of Swamiji. The contested Will was allegedly opened after the sudden demise of the testator and his wife in the presence of Swamiji on 29.05.1994.
3.7. Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator cancelled an earlier Will executed by him in the year 1974.
Ex. P.3: Handwritten draft of the Will said to have been prepared by the testator and kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8. Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and Sy. No. 632. These were in the name of the testator's wife as per the relevant records.
Schedules B, C and D: Consisting of shops and houses; admittedly they belonged to the testator 5.
5 The testator owned several other properties too that were not mentioned in the Will, and hence, are not a part of the suit properties.
SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE