H. V. NIRMALA & ANR.versusR. SHARMILA & ANR.

                         [2018] 1 S.C.R. 347                             347


                     H. V. NIRMALA & ANR.                                A
                                  v.
                      R. SHARMILA & ANR.
                   (Civil Appeal No. 881 of 2018)
                        JANUARY 25, 2018                                 B
  [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 – Present        C
suit by plaintiff for declaration that the compromise decree was not
binding on her and that she was the lawful owner of the suit schedule
properties on the basis of Will dated 12.3.1980 – Trial Court
dismissed the suit holding that the plaintiff failed to prove the Will
dated 12.3.1980 – High Court decreed the suit – On appeal, held:
                                                                         D
On the facts of the case, plaintiff proved the Will dated 12.3.1980
in accordance with the requirement of s. 68 of Evidence Act – Since
the plaintiff was not a party to the compromise decree, the same
was not binding on her – Therefore, she is entitled to claim a
declaration in her favour as she is owner of the properties
bequeathed to her by the testator.                                       E
      Dismissing the appeal, the Court
      HELD: 1. The plaintiff was able to prove the Will dated
12.03.1980 in accordance with law and there is no reason to hold
otherwise. The Will dated 12.03.1980 was a registered Will. It
was executed by none other than the father in favour of his minor        F
daughter-plaintiff and minor Son-defendant No.1 born from first
wife. When the father bequeathed his property to his minor
children then there is nothing unnatural in it. It is natural
bequeath out of love and affection. There is no question of minor
daughter and son playing an active role in execution of the Will         G
dated 12.03.1980 in their favour. It is for the simple reason that
both were too young to indulge in any kind of illegal acts to grab
the suit property. In other words, it was too much to expect from
the minor children to play any active role in grabbing their father’s
property and create forged Will. [Para 17][351-D-F]
                                                                         H
                                 347
348             SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A            2. It has come in the evidence that the original Will dated
      12.03.1980 was not in possession of the plaintiff but it was in
      possession of defendant No.1. For this reason, the plaintiff filed
      its certified copy after obtaining from Registrar’s office. This
      explanation was rightly accepted by the High Court. Since the
      original Will was not in plaintiff’s possession, its existence and
B
      legality could be proved by the plaintiff by leading the secondary
      evidence. [Para 17][351-F-G]
            3. The plaintiff proved the Will dated 12.03.1980 in
      accordance with the requirement of Section 68 of the Evidence
      Act, 1872 by adducing her own evidence and by examining one
C     attesting witness of the Will. Such evidence was sufficient to
      prove the Will. [Para 17][351-G-H]
            4. It is not in dispute that the later Will dated 20.05.1995
      disclosed by the defendants did not find mention therein the fact
      of execution of first Will dated 12.03.1980 by the testator. The
D     Will dated 20.05.1995 should have found reference of the earlier
      Will dated 12.03.1980 because Will dated 12.03.1980 was a
      registered Will and in order to prevail the last Will over the earlier
      one, the reference of revocation of the earlier Will dated
      12.03.1980 was necessary in the later Will. It was not so. [Para
E     17][351-H; 352-A-B]
            5. Since the plaintiff was not a party to the compromise
      decree dated 25.01.1997 passed in OS No.7266 of 1996, it was
      not binding on her. Once the Will dated 12.03.1980 is held proved,
      in accordance with law, the the plaintiff becomes entitled to claim
F     a declaration in her favour that she is the owner of the properties
      bequeathed to her by the testator as specified in the Will. [Para
      17][352-B-C]
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 881 of
      2018.
G           From the Judgment and Order dated 20.09.2011 of the High Court
      of Karnataka at Bangalore in RFA No. 1128/2008.
            R. S. Hegde, Girish Anathamurthy, Mrs. Farhat Jahan Rehmani,
      Mrs. Vaijayanthi Girish, Advs. for the Appellants.

H
       H. V. NIRMALA & ANR. v. R. SHARMILA & ANR.                            349


       H. N. Nagmohan Das, Sr. Adv., Shekhar G. Devasa, Manish               A
Tiwari, 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.
                                                                             B
       2. This appeal arises from the final judgment and order dated
20.09.2011 passed by the High Court of Karnataka at Bangalore in RFA
No.1128 of 2008 whereby the High Court set aside the judgment of the
Trial Court and decreed the suit filed by the plaintiff.
      3. In order to appreciate the issues involved in the appeal, it is     C
necessary to set out the relevant facts hereinbelow.
       4. The appellants are defendant Nos. 2 and 3, whereas respondent
No.1 is the plaintiff and respondent No. 2 is defendant No. 1 in the civil
suit, out of which this appeal arises.
       5. The dispute is essentially between the family members and it       D
relates to certain immovable properties originally belonged to the Head
of the family known as - Ramaiah. The family tree would be useful to
appreciate the issues.

                                                                             E




                                                                             F



      6. Ramaiah Reddy had two wives, first–Smt. Hemavathi and the
second-Smt Nirmala. Out of the wedlock with first wife–Smt. Hemavathi,
one daughter-Sharmila (plaintiff) and a son-Umesh (defendant No.1)           G
were born, whereas out of the wedlock with second wife-Nirmala, one
son- Rakesh Babu (defendant No.3) was born. Hemavathi-the first
wife 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 being
O.S. No.7266 of 1996 against Nirmala and Rakesh Babu. This suit was          H
350             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     filed for partition of the properties owned by late Ramaiah Reddy. It
      was based on the Will dated 20.05.1995 said to have been executed by
      Ramaiah in favour of three parties to the suit.
            8. The parties compromised the suit and accordingly the
      compromise decree was passed on 25.01.1997 without any contest on
B     merits.
             9. On 04.11.2000, Sharmila - daughter from first wife filed a civil
      suit being OS No.7592 of 2000 in the Court of City Civil Judge, Bangalore
      against Nirmala, Umesh and Rakesh Babu, out of which the present
      appeal arises. This suit was for a declaration that the compromise decree
C     dated 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 schedule
      on the basis of the Will dated 12.03.1980 executed by Ramaiah in her
      favour.
             10. The three defendants filed the written statement. They denied
D     the Will dated 12.03.1980 set up by the plaintiff and supported the
      compromise decree obtained by them on 25.01.1997 in O.S. No.7266 of
      1996. The Trial Court framed the issues. Parties adduced their evidence.
      The Trial Court, by its judgment and order dated 28.08.2008, dismissed
      the suit. It was held that the plaintiff having failed to prove the original
      Will dated 12.03.1980, the suit must fail. In other words, the Trial Court
E     was of the view that it is not possible to hold, in the absence of sufficient
      evidence adduced by the plaintiff, that the Will dated 12.03.1980 is proved
      in accordance with law.
              11. The plaintiff, felt aggrieved by the dismissal of her suit, filed
      first appeal before the High Court of Karnataka, out of which this appeal
F     arises.
             12. By the impugned judgment/decree, the High Court allowed
      the appeal, set aside the judgment/decree of the Trial Court and decreed
      the plaintiff’s suit. The High Court held that the plaintiff was able to
      prove the Will dated 12.03.1980 in accordance with law with the evidence
G     adduced by her and hence she was entitled for a declaration as claimed
      by her in the suit relating to the suit properties. Defendant Nos. 2 and 3
      felt aggrieved by the impugned judgment of the High Court and filed this
      appeal by special leave in this Court.

H
       H. V. NIRMALA & ANR. v. R. SHARMILA & ANR.                              351
                [ABHAY MANOHAR SAPRE, J.]

       13. Having heard the learned counsel for the parties and on perusal     A
of the record of the case, we find no merit in the appeal. In our view, the
High 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 the
Will dated 12.03.1980 in accordance with law.                                  B
       15. As mentioned above, the Trial Court decided the question
against the plaintiff whereas the first Appellate Court decided the question
in plaintiff’s favour.
      16. Having examined, we are inclined to concur with the reasoning
of the High Court and accordingly answer the question in favour of             C
respondent No.1, i.e., the plaintiff and against the appellants (defendant
Nos. 2 and 3). In other words, we hold that the plaintiff was able to
prove the Will dated 12.03.1980 in accordance with law and there is no
reason to hold otherwise. This we say for the following reasons.
       17. First, the Will dated 12.03.1980 is a registered Will. Second, it   D
was executed by none other than the father-Ramaiah in favour of his
minor daughter-Sharmila and minor Son-Umesh born from first wife.
Third, when Ramaiah-the father bequeathed his property to his minor
children then we find nothing unnatural in it. In our opinion, it is a
natural bequeath out of love and affection. Fourth, there is no question       E
of minor daughter and son playing an active role in execution of the Will
dated 12.03.1980 in their favour. It is for the simple reason that both
were too young to indulge in any kind of illegal acts to grab the suit
property. In other words, it was too much to expect from the minor
children to play any active role in grabbing their father’s property and
create forged Will. Fifth, it has come in the evidence that the original       F
Will dated 12.03.1980 was not in possession of the plaintiff but it was in
possession of defendant No.1. For this reason, the plaintiff filed its
certified copy after obtaining from Registrar’s office. Sixth, this
explanation was accepted by the High Court and, in our opinion, rightly.
Seventh, since the original Will was not in plaintiff’s possession, its        G
existence and legality could be proved by the plaintiff by leading the
secondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980
in accordance with the requirement of Section 68 of the Evidence
Act,1872 by adducing her own evidence and by examining one attesting
witness of the Will. In our view, such evidence was sufficient to prove
the Will. Ninth, it is not in dispute that the later Will dated 20.05.1995     H
352             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     disclosed by the defendants did not find mention therein the fact of
      execution of first Will dated 12.03.1980 by the testator. In our view, the
      Will dated 20.05.1995 should have found reference of the earlier Will
      dated 12.03.1980 because Will dated 12.03.1980 was a registered Will
      and in order to prevail the last Will over the earlier one, the reference of
      revocation of the earlier Will dated 12.03.1980 was necessary in the
B
      later Will. It was not so. Tenth, since the plaintiff was not a party to the
      compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it
      was not binding on her. Lastly, once the Will dated 12.03.1980 is held
      proved, in accordance with law, the plaintiff becomes entitled to claim a
      declaration in her favour that she is the owner of the properties
C     bequeathed to her by the testator as specified in the Will.
              18. In the light of the foregoing discussion, we hold that the High
      Court was right in holding that the plaintiff was able to prove the Will
      dated 12.03.1980 and that the Will dated 20.05.1995 and the decree
      dated 25.01.1997 passed in O.S. No.7266 of 1996 are not binding on the
D     plaintiff.
            19. As a consequence thereof, we find no merit in this appeal,
      which fails and is accordingly dismissed.


      Kalpana K. Tripathy                                          Appeal dismissed.
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