proof of will deed – whether the Plaintiff (Respondent No.1 herein) was able to prove the Will dated 12.03.1980 in accordance with law.= 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 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 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, 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.

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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