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     REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 881 OF 2018 [Arising out of SLP (C) No.7470 of 2012]

H.V. Nirmala & Anr. .. Appellants

Versus

R. Sharmila & Anr. .. Respondents

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

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.

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3. In order to appreciate the issues involved in the

appeal, it is 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  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.

Ramaiah @ Ramaiah Reddy (died on 26.11.1995) _______________|_________________

                  |       |       Smt. Hemavathi                     Smt. H.V. Nirmala       (1st wife died : 24.2.89)      (2nd wife) Defendant 2                 | |       (i) R. Sharmila                     Rakesh Babu       (daughter – Plaintiff) &           (son – Defendant 3)               (ii) Umesh (son – Defendant 1)

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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)  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 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.

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8. The  parties  compromised  the  suit  and

accordingly  the  compromise  decree  was  passed  on

25.01.1997 without any contest on 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 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 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.

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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 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 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 adduced by

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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.

13. Having heard the learned counsel for the parties

and on perusal 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.  

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.

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16. Having  examined,  we  are  inclined  to  concur

with the reasoning of the High Court and accordingly

answer  the  question in  favour  of  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 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  of  minor  daughter  and  son

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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 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 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

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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  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

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,

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the plaintiff becomes entitled to claim a declaration

in her favour that she is the owner of the properties

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 plaintiff.

19. As a consequence thereof, we find no merit in

this appeal, which fails and is accordingly dismissed.  

………………………………..J (R.K. AGRAWAL)

          ..………………………………J.    (ABHAY MANOHAR SAPRE)

New Delhi, January 25, 2018