Bangalore District Court
R.Dwarakanath vs Nil on 30 March, 2016
C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9(Civil)
Title sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF LXVI ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.67)
Dated, this the 30th day of March, 2016
PRESENT
SRI. A.VIJAYAN., B.A.(LAW), LL.M.
LXVI Addl. City Civil & Sessions Judge,
P & SC.NO.58/2016
PETITIONERS 1. R.Dwarakanath,
S/o B.R.Atman,
Aged about 73 years,
R/at No.201, Madhur Apartments,
9th Cross, 9th Main, Malleshwaram,
Bangalore.560003.
2. Rama Raman,
W/o Late M.S.Raman,
Aged about 83 years,
R/at NO.601,
KT Apartment, NO.49,
8th Main, 9th Cross, Malleswaram,
Bangalore.560 003.
( By Sri.Ashok.B.Patil, Advocate)
- V E R S U S -
2 P & SC.58/2016
RESPONDENT NIL
Date of institution of the suit : 28.01.2016
Nature of the suit (suit on Suit for Probate and Succession
pronote, suit for declaration and certificate
possession suit for injunction,etc) :
Date of the commencement of 09.03.2016
recording of the evidence :
Date on which the Judgment was 30.03.2016
pronounced :
Total duration Year/s Month/s Day/s
0 2 2
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(A.VIJAYAN.)
LXVI Addl. City Civil & Sessions Judge
Bangalore.
J U D G M E N T
Petitioners have filed this petition under Sec.276 of Indian Succession Act 1925 against the respondent nil for probate to have effect through out the State of Karnataka.
2. Brief facts of the petitioners case is that:
Petitioners No.1 and 2 are brother and sister of late Ms.Godha Atman respectively. Ms.Godha Atman died on 22.9.2015 within the jurisdiction of this court being her fixed place of abode. During her life time the above said
3 P & SC.58/2016 late Ms.Godha Atman has procured such an assets as stated in the schedule to this petition using her self earned income and not inherited through any other person. Ms.Godha Atman has duly executed her Will in the presence of witnesses which is the last will in favour of petitioners Sri.Dwarakanath and Ms.Ramaraman the executors named in the Will. According to the Will of Ms.Godha Atman the property item NO.1 to the schedule is bequeathed to her nephew Mr.Kaushik Dwarakanath also known as D.Kaushik the 1st son of Dwarakanath and the property at Item No.2 to the schedule bequeathed to her nephew Mr.Aravind Dwarakanath also known as D.Aravind, 2nd son of R.Dwarakanath. Property at Item No.3 and 4 to the schedule are bequeathed to the petitioner. Further submitted that the amount of the assets which are likely to come to the hands of the petitioner does not exceed in the aggregate sum of Rs.9,35,000/- and the net amount of said assets after deducting all items with the petitioners are by law allowed to deduct is under value of INR 9,35,000/-.
4 P & SC.58/2016 The petitioners undertake to duly administer property and credits of said Ms.Godha Atman, deceased and to make a full and true inventory thereof had exhibit the same in this court within six months from the grant of probate and also to render this court a true account of said property and credits within one year from the said date. Hence, petitioner prayed this court that he may be allowed to prove the said Will in common form and said probate there of to have effect through out the state of Karnataka may be granted to them.
3. After filing this petition paper publication issued to respondent nil inviting any public relative well wishers , creditors and debtors of any to show their liabilities if any in the properties shown to these petition schedule it was possessed by deceased Ms.Godha Atman. But on that appointed date no body appeared to object claim of petitioners to issue probate in their favour as executors of the Will, bequeath by Ms.Godha Atman in their favour. Hence, case posted for evidence of petitioner.
5 P & SC.58/2016
4. During the course of Trial petitioner examined PW1 and PW2 and filed affidavit in lieu of examination in chief and got marked documents Ex.P.1 and P2.
5. Heard learned counsel for the petitioner.
6. On the above said facts and circumstances of the case and materials case papers on record, points that arise for consideration are as under:
POINT No.1 : Whether petitioners proves that they are executors of the Will authored by Ms.Godha Atman ?
POINT NO.2 : What Order ?
7. My findings on the above points are as under
Point No.1: In the Affirmative Point No.2 : As per order for the following:
REASONS
8. Petitioners have filed this petition under Sec.276 of Indian Succession Act 1925 against the respondent nil and submitted that petitioners No.1 and 2 are brother and sister 6 P & SC.58/2016 of late Ms.Godha Atman respectively. Ms.Godha Atman died on 22.9.2015 within the jurisdiction of this court being her fixed place of abode. During her life time the above said late Ms.Godha Atman has procured such an assets as stated in the schedule to this petition using her self earned income and not inherited through any other person. Ms.Godha Atman has duly executed her Will in the presence of witnesses which is the last will in favour of petitioners Sri.Dwarakanath and Ms.Ramaraman the executors named in the Will. According to the Will of Ms.Godha Atman the property item No.1 to the schedule is bequeathed to her nephew Mr.Kaushik Dwarakanath also known as D.Kaushik the 1st son of Dwarakanath and the property at Item No.2 to the schedule bequeathed to her nephew Mr.Aravind Dwarakanath also known as D.Aravind, 2nd son of R.Dwarakanath. Property at Item No.3 and 4 to the schedule are bequeathed to the petitioner. Further submitted that the amount of the assets which are likely to come to the hands of the petitioner does not exceed in the 7 P & SC.58/2016 aggregate sum of Rs.9,35,000/- and the net amount of said assets after deducting all items with the petitioners are by law allowed to deduct is under value of INR 9,35,000/-. The petitioners undertake to duly administer property and credits of said Ms.Godha Atman, deceased and to make a full and true inventory thereof had exhibit the same in this court within six months from the grant of probate and also to render this court a true account of said property and credits within one year from the said date. Hence, petitioner prayed this court that he may be allowed to prove the said Will in common form and said probate there of to have effect through out the state of Karnataka may be granted to them.
9. Petitioner during the course of trial himself examined as PW1 and got examined one Mr.Sarangapani as PW2 as attester of the Will and got marked documents at Ex.P1 death certificate of Ms.Godha Atman and unregistered Will Ex.P.2. He also identified signature of deceased Ms.Godha 8 P & SC.58/2016 Atman and PW2 identified his attesting witness signature in Ex.P.2 at P.2(b) .
10. Learned advocate for petitioner submitted that though Will not registered it is maintainable under law because in case of Will registration is optional. In support of her case learned advocate for petitioner produced the following citations:
1. AIR 2013 S.C.No. 2088: MANU/S.C.No./0462/2013 M.R.Ramesh Vs K.M.Veeraje Urs Pages 1-12 Paras 17, 18, 20, 21, 22 Evidence of one attesting witness sufficient to prove Will The attesting witness examined need not specifically state that the other attesting witness was present at the same time.
2. (2012)4 SCC 387 MANU/S.C.No./0208/2012 Mahesh Kumar Vs. Vinod Kumar Pages 13-25: Paras 16, 18, 19 9 P & SC.58/2016 There is no suspicion, especially when natural heirs are beneficiaries.
Onus on propounder can be taken to be discharged on proof of the facts that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature on the document of his own free will.
If a caveat is filed alleging undue influence, fraud or coercion, such pleas have to be proved by the caveators.
It is the duty of the propounder to remove all suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
3. AIR 2005 S.C.No. 4362: MANU/S.C.No./0819/2005 Pentakota Satyanarayana & Others V/s Pentakota Seetharatnam and Others.
No evidence to show undue fraud or influence at the time of execution of the Will, no evidence to show that testator was not in a sound state of mind, hence, 10 P & SC.58/2016 evidence adduced by propounder sufficient to satisfy the conscience of the court.
Propounder called upon to show Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature on the document of his own free will which was discharged.
Not every circumstance is a suspicious circumstance.
4. MANU/KA/1725/2012 Muniyamma Vs Joint Commissioenr, Yelahanka Pages 40-41 : Para 3 A Will need not be registered. Cancellation of khatha on the ground that the Will requires registration not justified.
5. Rur Singh Vs.Bachan Kaur (2009(11 SCC 1: MANU/S.C.No./0817/2009 Pages: 42-48: Paras 15,20.
11 P & SC.58/2016 If the Will is proved to be genuine and the statutory requirements were satisfied, only because the panchayat register was not produced by itself would not lead to the conclusion that the Will would held to have been not executed.
In case of Smt.Jaswanth Kaur V/s Smt.Amruth Kaur, AIR 1977 SC 74 Hon'ble Supreme Court laid down following propositions as guidelines to the court to dispose off P&SC matter in case of issuing probate to the Will.
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainly.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court land capable of giving evidence.
12 P & SC.58/2016
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduced an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which to into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will, That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would 13 P & SC.58/2016 normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the Propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with walls, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. In regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances 14 P & SC.58/2016 surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will and then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
11. Hence, in view of the above facts and circumstances of the case and guidelines of Supreme Court stated above petitioner has proved death of Ms.Godha Atman by producing Ex.P1 and Will executed by deceased Ms.Godha Atman, though it is unregistered Will for which learned advocate for petitioner has enlightened this court with provision of law as well as case law that even unregistered Will can be proved by Executors as well as the examination attesting witness under Sec.63 and 68 of Evidence Act. Hence, petitioners proved that deceased Ms.Godha Atman is author of the Will and petitioners are Executors who are appointed by Testator in the Will for disposal of properties in accordance with intention of Testator. Petitioners have 15 P & SC.58/2016 proved that they are entitled for Probate. Accordingly, this court hold point NO.1 in the Affirmative.
12. Point NO.2: In view of my findings on point NO.1, I proceed to pass the following:
ORDER Petition filed by the petitioner under Sec.276 of Indian Succession Act 1925 is hereby allowed. Accordingly, issue Probate. Petitioners herein are directed to file compliance of intention of Testator to the court at the earliest. (Typed to my online dictation by the Judgment Writer, corrected, signed and then pronounced by me in open Court on this the 30th day of March 2016).
(A.VIJAYAN.) LXVI Addl. City Civil & Sessions Judge ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1: R.Dwarakanath
P.W.2: S.Sarangapani
2. List of documents marked for Plaintiff:
Ex.P1 : Death certificate of Godhan
Atman
16 P & SC.58/2016
Ex.P2 : Un registered will
Ex.P2(a) : Signature of Godhan Atman
Ex.P2(b) : Signature of Sarangapani
3. List of witnesses examined and documents marked for Defendants:
- Nil -
(A.VIJAYAN.) LXVI Addl. City Civil & Sessions Judge 17 P & SC.58/2016