Bangalore District Court
Smt.Jeevamani vs A.Angamuthu on 2 December, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 2nd day of December 2015
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 8 1 4 2 / 2001
Plaintiffs:- 1. Smt.Jeevamani
D/o Late Butler M.Amba
W/o Late Antony
Aged about 63 years
R/o at No.6, Q.No. 4th Street
1st Cross, Bharathinagar
Bangalore-560 001.
2. Smt.Krishna
D/o Late Dhanamma
Aged about 50 years
3. Smt.Sampa D/o
Late Dhanamma,
Aged about 48 years
Since Dead by LRs
a) Smt.Rita.S @ Latha
W/o George Edwin.A.
Aged about 34 years
b) Smt.Anjali @ Amu
W/o Sri Magesh
Aged about 32 years
c) Smt.Susi W/o
Srinivas, Aged about 29 yrs
2 O.S.No.8142/2001
d) Sri Raja @ Diddu
Aged about 24 years
e) Sri James @ Kullabatt
Aged about 22 years
f) Smt.Catherine
Aged about 19 years
Represented by her guardian -
Elder sister Smt.Latha
W/o Sri George Edwin
D/o Late Sampa (Sampa
Sagaya Mary) and grand
Daughter of Late
Smt.Dhanamma
The above from 3(a) to 3(f)
are
Children of late Smt.Sampa
(Sampa Sagaya Mary)
All are R/o 162,
Thimmaiah Road
Bharathi Nagar
Bangalore-560 001
4. Smt.Radhika.V.
D/o Late Smt.Rani and
Grand daughter of
Late Smt.Dhanamma
R/o No.6Q, No.4th Street
Thimmaiah Road
Bharathinagar
Bangalore-1.
(Plaintiffs No.1 to 4 by Sri
V.G.Dharma Kumar, Advocate)
(Plaintiffs 3(a) to (f) by Sri
C.Gowrishankar, Advocate)
Vs.
3 O.S.No.8142/2001
Defendants:- 1. A.Angamuthu
S/o Late Butler M.Amba
Aged about 73 years
R/o No.8Q No. 4th Street
Bharathinagar
Bangalore-560 001
2. Smt.Anitha.V.
W/o Sri Babu
Aged about 29 years
3. Sri Gopi V. S/o
Late Smt.Rani,
Aged about 27 years
4. Sri Prabhu.V. @ Chittu
S/o Late Rani
Aged about 23 years
5. Kum.Sangeetha V.
D/o Late Smt.Rani
Aged about 21 years
6. Kum.Monisha V.
D/o Late Smt.Rani
Aged about 14 years
Minor represented by her
Guardian - elder sister
Smt.Anitha
All are residing at No.14/74,
Hennur Main Road,
OPP. M.V.R.Service Station
H.B.R.Layout,
K.K.Halli, Bangalore-560 048.
7. Sri Sagaya Kumar
S/o Late Antony
Aged about 36 years
R/o No.8Q no.4th Street
Thimmaiah Road,
Bharathi Nagar,
Bangalore-560 001.
4 O.S.No.8142/2001
(D1 and D7 by Sri M.A.Sabastian,
Advocate)
(D2 to D6 by Sri V.C.Rudresh,
Advocate)
Date of institution of suit 20-10-2001
Nature of the suit Declaration, partition and
separate possession of
shares in suit schedule
property
Date of commencement of 27-10-2009
recording of evidence
Date on which Judgment 02-12-2015
was pronounced
Total duration Day Months Year
12 01 12
JUDGMENT
This suit filed by the plaintiff is for declaration to declare that the plaintiffs are entitled to 2/3rd share in the suit schedule property and for partition and for separate possession of their 2/3rd share in the suit properties and to put plaintiffs into possession of their separate share in the suit property together with mesne profits in respect of suit property and for costs and any other reliefs which the court deems fit in the interest of justice.
2. The brief facts of the plaint averments are that, late Butler M. Amba is the original propositus and that, he had two sons and two daughters by name Angamuthu, Jeevamani, Rangan and 5 O.S.No.8142/2001 Dhanamma and that Angamuthu is defendant No.1 and Jeevamani is Plaintiff No.1, Rangan and Dhanamma are now dead in 1978 and 1992 respectively and that Rangan was unmarried and that plaintiffs No.2 and 3 and Rani are daughters of Late Dhanamma and that Rani and plaintiff No.3 being daughters of Dhanamma are now dead and therefore plaintiff No.4 and defendant No.2 to 6 being the LRs of deceased Rani and Plaintiff No.3(a) to (f) being LRs of deceased Sampa are on record and that, suit property is acquired by Butler M. Amba under registered sale deed dt.28.09.1930 and donated the same in favour of his two sons and two daughters under registered gift deed dt.03.02.1942 and that the share of Rangan as he died un-married and issueless reverted to other sharers and that the defendant No.1, plaintiff No.1 and deceased Dhanamma each got 1/3rd share in the suit property and in view of the death of Dhanamma intestate, her 1/3rd share devolved upon plaintiff No.2, plaintiff No.4 and plaintiff No.3(a) to (f) and defendants No.2 to 6 and that defendant No.1 being kartha has refused and denied to give share to the plaintiffs on demand. Hence, this suit.
3. Defendant No.1 filed his written statement wherein he admits the relationship of plaintiffs and defendant No.1 and contends that he is in 6 O.S.No.8142/2001 possession of 1/3rd portion and plaintiffs are in possession of 2/3rd portion in suit property, as suit property is divided and partitioned between plaintiffs and defendant No.1 during life time of Butler M.Amba and contends that only khatha is to be effected in respect of shares of plaintiffs and defendant No.1 in BBMP and submits that Municipal Door No.39 in Q.No.4 Street, Thimmaiah Road Cross, 3rd A Division, Bharathinagar, Bangalore consists of house and open land measuring East to West 20 ft., North to South 25 ½ ft., is purchased by his mother during her life time under registered sale deed dt. 18.8.19141 and died in 1975 intestate and hence plaintiffs and defendant No.1 succeed to it as her LRs and prays for 1/3rd share in the said property. On these grounds, Defendant No.1 prays for dismissal of this suit.
4. Defendant No.1 has filed his additional written statement wherein he contended that he is entitled to reimbursement of tax paid by him in respect of suit property.
5. Defendant No.2 to 6 being the daughters of late Rani have filed their written statement wherein they admit the relationship of plaintiffs and defendants No.1 to 6 and contend that they have relinquished their shares in the suit property in favour of 1st plaintiff on the ground that they get 7 O.S.No.8142/2001 meager and very small share. On these grounds they pray for passing suitable orders.
6. Defendant No.7 files his written statement wherein he adopts written statement of defendant No.1 and contends that he has become owner of 1/3rd share in suit property, which defendant No.1 is entitled on the ground that defendant No.1 has during his life time executed registered Will Deed dt. 16.04.2005 bequeathing his share in suit A and B properties of written statement in favour of this defendant, before his death on 2.3.2007, after revoking earlier Will Deed dt. 15.11.1989 executed by defendant No.1 in favour of this defendant in respect of A and B properties of written statement. On these grounds, defendant No.7 prays for dismissal of suit and to pass decree for partition of 'B' schedule property of written statement to the extent of 1/3rd share to this defendant and to put defendant No.7 into possession of said share.
7. Plaintiffs filed written statement to the written statement of defendant No.7, as defendant No.7 came on record subsequently during the pendency of the suit. Plaintiffs in their written statement deny the execution of will deed by defendant No.1 in favour of defendant No.7 in respect of A and B properties of written statement and contend that suit B schedule property of written 8 O.S.No.8142/2001 statement is settled under settlement deed dt. 23.8.1978 in favour of her husband Butler M. Amba by Nagamma and later Amba has transferred said property in the name of sons of 1st plaintiff who are in possession of said property.
8. On the basis of these rival contentions of both parties, the following Issue No.1 to 5 and Addl. Issue No.6 are framed:
1. Whether the defendant proves that there was already a partition in respect of the suit schedule property in between him and the plaintiffs as contended in para-5 of his written statement?
2. Whether defendant No.1 proves that property No.39 situated at Q.No.4 Street, Thimmaiah Road Cross, Bharathinagar, Bangalore is liable for partition and that he has 1/3rd share in it?
3. Whether the plaintiffs prove that the property bearing No.39, Thimmaiah Road Cross, Bharathinagar, Bangalore has been settled in favour of sons of first plaintiff under settlement deed on 23.08.1978 and therefore it is not available for partition?
4. Whether defendant No.7 proves execution of will dated 16.04.2005 by defendant No.1 Angamuthu as his last Will about 'A' and 'B' written statement schedule properties out of free will and sound mind?9 O.S.No.8142/2001
5. What Decree or Order?
6. Whether the defendant No.2 to 6 prove that they have relinquished their legitimate share in favour of plaintiff No.1 according to law?
9. The plaintiffs in order to prove their case, examined their Power of Attorney Holder as P.W.1 and relied upon ten documents marked as Ex.P.1 to 10 and closed their side. On the other hand, defendant No.7 has examined himself with another witness as DW1 and DW2 respectively and relied upon 23 documents marked as Ex.D.1 to Ex.D23 and closed his side.
10. Heard the arguments of Learned Counsel of both the parties.
11. My answer to the above Issues are as under:
Issue No.1 - in the Negative;
Issue No.2 - in the Negative;
Issue No.3 - in the Affirmative; Issue No.4 - in the Negative;
Issue No.6 - in the Affirmative; Issue No.5 - as per Final Order below; for the following:10 O.S.No.8142/2001
Reasons
12. Admitted facts are that Sri Butler M.Amba being the original propositus has died and plaintiff No.1, defendant No.1, Rangan and Dhanamma have also died and defendant No.1 was residing in small portion of suit property during his life time by constructing a house in it and that the relationship between plaintiffs and defendants No.1 to 6 is admitted.
13. Issue No.1: The defendant No.1 has filed his written statement contending that there was already a partition in respect of suit schedule property between himself and plaintiffs as contended by him in para-5 of his written statement. In order to substantiate this contention he has not examined any of the witnesses nor produced any documents.
14. In view of the fact that there is no evidence on record produced by defendant No.1, it can be said that there is no partition in suit property by metes and bounds between plaintiffs and defendant No.1. Accordingly, I hold Issue No.1 in Negative.
15. Issue No.2 and 3:- For the sake of convenience and to avoid repetition of facts, Issue No.2 and 3 are taken up together for common 11 O.S.No.8142/2001 consideration. The plaintiffs contend that property No.39 of Thimmaiah Road Cross, Bharathi Nagar, Bengaluru is purchased by wife of Butler M.Amba from its erstwhile owner under registered sale deed and after her death, said Butler M.Amba has settled this property in favour of sons of plaintiff No.1 under settlement deed dt. 23.8.1978 and thereafter the sons of plaintiff No.1 are in possession and enjoyment of said property and therefore said property is not available for partition. In order to substantiate this contention, the Power of Attorney holder of plaintiff No.1 to 4, who is also one of the beneficiary under settlement deed has reiterated same facts in his evidence before the court as PW1. Further PW1 has relied upon Ex.P.9-original sale deed dt. 18.8.1941 executed by Syed Fareeb Sahib in favour of Nagamma W/o Butler Ambappan in respect of Municipal Door No.39 situated in Q.No.4 Street, Thimmaiaha Road Cross, III-A Division, Bangalore and Ex.P.10-registered Settlement Deed dt. 23.08.1978 executed by Butler Ambappan in favour of sons of plaintiff No.1. On going through these documents, it can be said that, Nagamma W/o Butler Ambappan purchased the suit property bearing No.39 of Thimmaiah Road Cross, Bangalore under registered sale deed dt.18.08.1941 from its erstwhile owner-Syed Fareed Sahib S/o Syed Khader Sahib and after her death, Butler Ambappan has 12 O.S.No.8142/2001 executed registered settlement deed dt.23.08.1978 settling the suit property bearing No.39, Thimmaiah Road Cross, of Bharathinagar, Bengaluru in favour of sons of plaintiff No.1. Therefore, contentions of plaintiffs that property No.39, Thimmaiah Road Cross, of Bharathinagar, Bengaluru is not available for partition on the ground that said property was purchased by mother of defendant No.1 by name Nagamma and after her death, the father of defendant No.1 by name Butler Ambappan has settled the said property under registered settlement deed dt.23.08.1978 in favour of sons of plaintiff No.1, has got force in it and therefore the same is accepted as true. Consequently, Issue No.2 is held in Negative and Issue No.3 is held in Affirmative.
16. Issue No.4:- Defendant No.7 contends that, defendant No.1 has executed registered will deed dt.16.4.2005 as his last will in respect of 'A and B' schedule properties of written statement out of free will and sound mind and therefore 1/3rd share in both the said properties will be inherited by defendant No.7, by virtue of said registered Will- deed dated 16-4-2005. In order to substantiate his contentions, he has examined himself as DW1 before the court and he has reiterated same fact before the court in his evidence. Further, he has examined another witness as DW2, who is one of the attesting 13 O.S.No.8142/2001 witness to the said Will Deed dt.16.4.2005 said to have been executed by defendant No.1-Angamuthu in favour of defendant No.7 in respect of his 1/3rd share in 'A' and B' schedule properties of written statement of defendant No.7.
17. Further, Defendant no.7 has produced and relied upon Ex.D.6-registered will deed dt. 15.11.1989 said to have been executed by Defendant No.1 in favour of defendant No.7 in respect of 1/3rd share in the suit property and Ex.D.7 is codicil dt. 28.6.1990 executed by defendant No.1 and Ex.D.19 is original will deed dt. 16.4.2005 said to have been executed by defendant No.1 in favour of defendant No.7 in respect of 1/3rd share in suit property and 1/3rd share in respect of 'B' schedule property of written statement of defendant No.7.
18. Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka in catena of decisions, held that for the purpose of proving will, the provisions of Sec.63 of Indian Succession Act and Sec.68 of Indian Evidence Act are to be strictly complied with and then there shall not be any shade of doubt with regard to execution, attestation of disputed will and that the court should be fully satisfied in respect of execution, attestation and genuineness of the disputed will deed.
14 O.S.No.8142/200119. In the light of principles laid down by Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka stated in previous paragraph, I have to consider the genuineness, execution and attested Will of this case.
In the instant case, defendant No.7 is relying upon the registered will deed dt. 16.4.2005 said to have been executed by defendant No.1-Angamuthu as his last will bequeathing 'A and B' schedule properties of written statement in his favour. Admittedly, 'A' schedule property of written statement of defendant No.7 is the suit property.
20. In this case, defendant No.1 has filed written statement on 5.4.2002 and filed additional written statement on 6.12.2005 and Ex.D.19- disputed will deed said to be have been executed by defendant No.1 bequeathing suit property and another property in favour of defendant No.7 is on 16.4.2005. The defendant No.1 being author of Ex.D.19 will deed said to have been executed by him in favour of defendant No.7, bequeathing suit property and another property, under registered will deed dt.16.4.2005, has not whispered anything about execution of will deed dt.16.4.2005 by him in favour of defendant No.7 in his additional written statement dt.06.12.2005. Non-mentioning of execution of will deed bequeathing his 1/3rd share in 15 O.S.No.8142/2001 the suit property and another property in favour of defendant No.7 by defendant No.1 in his Additional Written Statement dt.06.12.2005, goes to the root of the case, to suspect about the execution of Ex.D.19 registered will deed dt.16.04.2005 by defendant No.1 in favour of defendant No.7.
21. Further, DW2 being attesting witness has stated in his affidavit filed in respect of his chief examination to the effect that "Defendant No.1 Angamuthu has executed his last Will in my presence and in presence of 2nd attesting witness by name Hussain and Sri M.A.Sabastian, Advocate, before the office of Sub-Registrar, Shivajinagara. Before signing the Will, its contents are read over and translated in Tamil and with full knowledge of the contents of the Will prepared as per instructions of Angamuthu and then Angamuthu has affixed his signature on each page of the Will in my presence and in the presence of Hussain and thereafter I have first signed the Will as an attesting witness and thereafter Mr.Hussain has signed to the Will as attesting witness and then the Will was presented for registration in the office Sub-Registrar, wherein Angamuthu has affixed his thumb impression and was photographed." But in his cross examination, DW2 has admitted that "I do not have personal knowledge about the health and mental condition of Angamuthu. Myself and Hussain 16 O.S.No.8142/2001 have not translated Ex.D.19 to Tamil. I do not have personal knowledge about so called translation made to Tamil. I was not present when instructions were given by Angamuthu to Advocate who drafted Ex.D19." This evidence of DW2 in his cross- examination itself contradicts with his own evidence given by him in para-3 of his affidavit filed as his examination-in-chief. This is another circumstance to suspect about the genuineness of the alleged Will Deed marked as Ex.D.19. In view of the above stated two reasons, the genuineness, the execution and attestation of Will Deed creates doubt to hold it as true and genuine document.
22. The contention of learned counsel for plaintiffs that, defendant N o.1 being Hindu, cannot bequeath suit properties in favour of defendant No.7, as defendant No.7 is of Christian community, cannot be accepted, as bequeathing of suit property by Hindu, in favour of Christian, is not barred.
23. Learned counsel for plaintiff has relied upon the following principles laid down in the:-
1) Ramachandra Rambux Vs. Champabai and others, reported in 1965 AIR 354, wherein it is held that:
The appellant filed a suit claiming the property of one which was in possession of R's widow on the allegation that R had 17 O.S.No.8142/2001 executed a will bequeathing almost his entire property to the appellant and practically excluding his widow and daughters. The ground on which the widow and the daughters were excluded is said to be the strained relations which had developed between R and his wife. The widow denied the execution of the alleged will and challenged the genuineness. The Trial Court holding that the will was genuine decreed the suit. On appeal, the High Court dismissed the suit holding that the wil was not genuine. The finding of the High Court was based on the evidence and the attending circumstances appearing in the case. Or appeal to this Court by a certificate granted:
Held: (i)In order to judge the credibility of the witness, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances brought out in the evidence, or which appear from the nature and the contents of the document itself.
(ii) It is necessary for the propounder to satisfy the court about the genuineness of the will by removing all suspicions which naturally from the various circumstances.18 O.S.No.8142/2001
2) Smt.Sushila Devi Vs. Pandit Krishna Kumar Missir and others reported in AIR 1971 SC 2235 wherein it is held that:
Para-5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of Ms children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behavior but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behavior on those who execute wills. As observed by this Court in H. Venkatachala lyengar v. B.N. Thimmaiamma, that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine.19 O.S.No.8142/2001
3) H.Venkatachala Iyenga Vs. B.N.Thimmajamma and others reported in 1959 AIR 443 wherein it is held that:
The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by s. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where there are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed with an open but nevertheless vigilant and cautious mind.20 O.S.No.8142/2001
Harmes v. Hinkson, (1946) 50 C.W.N. 895, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Barry v. Butlin, [1838] 2 MOO.
P.C. 480, Vallasamy Servai v.
Sivaraman Servai, (1929) L.R. 57 I.A. 96 and Sarat Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 1. A. 62, referred to.
Case-law discussed.
In the instant case the appellant, as the sole executor to a will, brought the suit out of which the appeal arises, for a declaration that the testatrix was the owner of certain properties and was as such entitled to dispose of them by the will and asked for consequential reliefs purporting to give effect to the bequests made by her. It appeared from the evidence that the appellant took a prominent, if not a decisive, part in the execution of the will, which contained substantial bequests in favour of his sons. But there was no evidence to show that the draft was ever approved by the testatrix or that the will was fully read out to her and she knew its contents. The trial court decreed the suit but the High Court dismissed the same. Held that the High Court was right in setting aside the finding of the trial court that the will had been duly and validly executed.
Held further, that the trial court was in error in holding that the proof of signature in the instant case could raise a presumption as to the testator's knowledge of the contents of the will.
4) Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee reported in 1964 AIR (SC) 529 wherein it is held that:
21 O.S.No.8142/2001Para-4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the 22 O.S.No.8142/2001 execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.
5) Rani Purnima Devi and another Vs. Kumar Khagendra Narayan Dev and another reported in 1962 AIR 567 wherein it is held that:
Held, that the due execution and attestation of the will were not proved. In view of the suspicious circumstances it was the duty of the propounder of the will to prove due execution and attestation by satisfactory evidence which would lead the court to the conclusion that the suspicious circumstances had been dispelled. This he had failed to do. The four attesting witnesses produced were interested and unreliable; none of the independent witnesses who bad signed the will were produced. The mere fact that the will was registered was not by itself sufficient to dispel the suspicions without scrutiny of the evidence of registration. Registration would dispel the doubt as to the genuineness of the will only if it was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and the 23 O.S.No.8142/2001 testator thereafter admitted its execution and signed in token thereof. In the present case, the registration was done in a perfunctory manner and the evidence did not establish that the testator knew that the document the execution of which he admitted before the sub-registrar's clerk was his will. The witnesses produced to prove registration, even if they are treated as attesting witnesses, failed to prove due execution and attestation of the will.
6) Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others reported in 1995 AIR 2086 wherein it is held that:
There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the court has taken note are: (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2) Shaky signature; (3) A feeble mind which is likely to be influenced; (4) Unfair and unjust disposal of property. (See in this connection: H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. (1959 Supp. (1) 24 O.S.No.8142/2001 SCR 426), Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. (1982 (1) SCR 1188 at p. 1192) and Guro(Smt.) v. Atma Singh & Ors. (1992 (2) SCC 507 at p.
511). Suffice it to say that no such circumstances are present here.
Learned Advocate for respondents 1 to 5 has submitted that Babubai was only fifty years of age when she died. She was enjoying normal health. There was no reason for her to make the Will. But in the Will itself Babubai has mentioned that she is suffering from physical weakness although she is not a very old person and hence she is making the Will. In any case, motive for making the Will is not really relevant. The fact that testatrix made a Will at the age of fifty cannot be considered as a suspicious circumstance reflecting on the genuineness of the Will.
In the premises, the High Court was not right in re-appraising evidence in Second Appeal and coming to the conclusion that the Will was not genuine or was not proved. The appeal is, therefore, allowed. The judgment and order of the High Court is set aside and the judgment and order of the first Appellate Court is restored. There will, however, be no order as to costs.
24. Learned counsel for defendant No.7 has also relied upon the following principles laid down in the:-
25 O.S.No.8142/20011) Janki Vasdeo Bhojwani and another Vs. Indusind Bank Ltd and others reported in MANU/SC/1030/2004 wherein it is held that:
CPC- Order III Rules 1 and 2 - Holder of Power of attorney - Whether he can depose for acts done by principal and in respect of matter which only principal can have personal knowledge? Held "NO".
Order III Rules 1 and 2 of CPC empowers the holder of Power of attorney to "act" on behalf of the principal. In our view, the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal.
2) Pentakota Satyanarayana and others Vs. Pentakota Seetharatnam and others reported in 2005 AIR SCW 5085 wherein it is held that:
(A) Succession Act- Sec.63- Execution of Will - Proof -Signatures of Registering Officer and of identifying witnesses affixed to registration endorsement - Endorsement by sub-registrar that executant has acknowledged execution before him - Amounts to attestation -
Executants signature taken by sub-registrar in document - Signature and thumb impression of identifying witnesses were also taken in document - All witnesses deposed that they had signed as identifying witness and that testator was in sound disposition of mind - Document also contained signatures of attesting witnesses and scribe - Held burden of proof to prove will had been duly and satisfactorily discharged by claimants.
26 O.S.No.8142/20013) Gurdev Kaur and others Vs. Kaki and others reported in 2006 AIR SCW 2404 wherein it is held that:
(B) Succession Act - S.63 - Will Validity - Nature of bequest - Relevant only for purpose of deciding its authenticity
- Court not to sit in appeal over testator's decision - Will - Due execution proved -
Holding it as non-authentic on ground of disinheritance of daughters - Not proper.
4) Sadhu Singh Vs. Gurdwara Sahib Narike and others reported in 2006 AIR SCW 4790 wherein it is held that:
(C) Hindu Succession Act - S.30 -
Will - Right of male Hindu to dispose of his property by a testament - Not curtailed by Act - Succession under Act stands excluded and property passes to the testamentary heirs - Will of a male Hindu providing only a life estate or limited estate for his widow could not be challenged as being hit by Act.
5) S.Sankaran Vs. D.Kausalya reported in 2007 AIR SCW 4181 wherein it is held that:
CPC - S.100 - Second Appeal -
Interference - Issue as to validity of Will - Will depriving one daughter of testator of property - Will held to be valid on circumstances that testator himself presented Will for execution and there was a dispute between testator and his deprived daughter - Interference with finding without proper consideration of facts and circumstances on which finding was given - Improper - Matter remanded.27 O.S.No.8142/2001
25. Above citations relied upon by both the parties are followed by me in ascertaining about the genuineness of the alleged Will Deed dt.16.4.2005. In view of the aforesaid reasons, I hold that the alleged Will Deed dt.16.4.2005 is not genuine and trust worthy and therefore the same is discarded. Accordingly, I hold Issue No.4 in the negative.
26. Issue No.6 (Additional Issue):- The defendants 2 to 6 contend in their written statement that they have relinquished their legitimate share in favour of plaintiff No.1 on the ground that their share is meager and very small. In view of this submission by the defendants No.2 to 6 in their written statement, I hold that plaintiff No.1 is entitled to shares of defendant No.2 to 6. Accordingly, I hold this issue in the Affirmative.
27. Issue No.5:- Defendant No.1 has died unmarried and issueless and therefore, share of defendant No.1 reverts back to plaintiffs No.1 to 4. Accordingly, plaintiff No.1 will get half share in the suit property and plaintiffs No.2, 3(a) to (f) and plaintiff No.4 are entitled to half share in the suit property. In view of the foregoing reasons and in the result, I proceed to pass the following:
28 O.S.No.8142/2001ORDER The Suit of the Plaintiffs is decreed.
Plaintiff No.1 is entitled to half share in the suit property and plaintiffs No.2 to 4 are jointly entitled to half share in the suit property.
Parties are directed to bear their own costs.
Draw Preliminary Decree accordingly.
(Dictated to the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 2nd day of December, 2015) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.29 O.S.No.8142/2001
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 D.Sumedhan List of documents exhibited for the plaintiff:
Ex.P.1 GPA executed by plaintiffs No.1 to 4 in favour of D.Sumedhan Ex.P.2 GPA executed by plaintiffs No.1 to 4 in favour of D.Sumedhan Ex.P.3 Office Copy of legal notice dt.2.11.98 Ex.P.4 Reply by Defendant No.1 dt.1711.198 Ex.P.5 & 6 Rough sketches of suit property Ex.P.7 Author of Ex.p.5 & 6 giving his certificate Ex.P.8 GPA by plaintiffs to PW1 Ex.P.9 Original sale deed dt.18.8.1941 Ex.P.10 Registered settlement deed dt.23.8.1978 List of witnesses examined for defendants:-
DW1 Sagayakumar DW2 V.Anandan
List of Documents marked for defendants:
Ex.D.1 &2 Photos of suit property
Ex.D.3 Electricity bill
Ex.D.4,5 Photos of suit property
Ex.D.6 Registered Will dt.15.11.1989
Ex.D.7 Codicil to the Will dt.28.6.1990
Ex.D.8 Death certificate of Amba
Ex.D.9 Letter dt.17.10.98 by Councilor to
BBMP Engineer
30 O.S.No.8142/2001
Ex.D.10 Rough sketch
Ex.D.11 Electricity bill
Ex.D.12 Water bill
Ex.D.13-18 Photos
Ex.D.19 Original Will dt.16.4.2005
Ex.D.20-21 Medical prescription and bills of Defendant No.1 Ex.D.22 Medical certificate issued by Kidwai Hospital Ex.D.23 Death certificate of defendant No.1 (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.31 O.S.No.8142/2001
-2015 32 O.S.No.8142/2001 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
The Suit of the Plaintiffs is decreed.
Plaintiff No.1 is entitled to half share in the suit property and plaintiffs No.2 to 4 are jointly entitled to half share in the suit property.
Parties are directed to bear their own costs.
Draw Preliminary Decree accordingly.
XXII A.C.C. & S.J., Bengaluru.