JOSEPH ALBERT LEWIS Vs. MICHAEL ROQUE LEWIS

JUDGEMENT

(1.) THE appellant is the plaintiff in O. S. No. 22/1998. The respondents herein were also the respondents in the suit with the same rank. The plaintiff had initially filed a petition seeking probate of the will and testament dated 18. 01. 1995 said to have been executed by the father of the parties namely late Thimothy Lewis. The father of the parties expired on 19. 03. 1995. The said petition was registered as P and SC No. 20/1996. The fourth respondent had lodged a caveat in respect of the same and as such the petition was converted as a suit in O. S. No. 22/1998. After trial, the said suit came to be dismissed by judgment and decree dated 24. 7. 2001. Claiming to be aggrieved by such dismissal of the suit, the plaintiffis before this Court in this appeal.

(2.) SRI B. V. Krishna, learned counsel appearing for the appellant while assailing the judgment and decree impugned in this appeal contended that the Court below has proceeded at a tangent. According to the learned counsel, the Court below instead of considering the requirement of testing the validity of the execution of the WILL as contemplated under Section 63 of the Indian Succession Act, has proceeded to look into the nature of the bequest and to examine as to whether the testator could make such a bequest. The learned counsel would contend that the nature of proof has been well enunciated by the Hon'ble Supreme Court in the case of H. V. IYANGAR vs b. N. THIMMAJAMMA. The learned counsel therefore contended that in the facts of the present case one of the attesting witness examined was a respectable person, who is none other than the brother-in-law of the testator. The said witness, namely Sri J. B. Bans, was a retired tahsildar. The other attesting witness namely Peter Lewis was the nephew of the testator and a renowned painter in his own right. He was dead and as such the question of examining him did not arise. The witnesses therefore were not strangers and were natural witnesses. The WILL in question was a document which was registered in the office of the Sub-Registrar. The learned counsel also referred to the oral evidence of the parties and witnesses and relied on several decisions of the Hon'ble Supreme Court as also this Court to contend what could or could not be considered as suspicious circumstance.

(3.) CONTRARY to the said contentions, Sri K. M. Nataraj, learned counsel appearing on behalf of Sri S. K. Acharya, learned counsel for the contesting fourth respondent, at the outset, would urge that the will on the face of it is null and void inasmuch as there is legal bar to execute the WILL. The learned counsel would contend that there is no dispute that the WILL schedule lands were tenanted lands both mulageni and lands cultivated by the testator as tenant. In respect of the lands in question there is no dispute that the land Tribunal has granted occupancy rights in favour of the father of the parties by order dated 16. 10. 1981. The provision in Section 61 of the Karnataka land Reforms Act, 1961 ('the Act' for short) prohibits transfer of such lands within a period of 15 years from the date of the order granting occupancy rights. The learned counsel by placing reliance on the decision of the Hon'ble Supreme Court in the case of SANGAPPA kalyanappa BANGI vs LAND TRIBUNAL, JAMKHANDI and others and JAYAMMA vs MARIA BAI DEAD BY PROPOSED lrs AND ANOTHER contended that WILL is held to be an assignment contemplated in Section 61 of the Act and it has been held that such assignment cannot be made within 15 years.