H. V. NIRMALA & ANR. versus R. SHARMILA & ANR.

Citation: [2018] 1 S.C.R. 347 · Decided: 25-01-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Dismissed

Judgment (excerpt)

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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 – Present
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:
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.
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
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
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]
[2018] 1 S.C.R. 347
347
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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
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
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
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
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
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.
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.
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H. N. Nagmohan Das, Sr. Adv., Shekhar G. Devasa, Manish
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.
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

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