Karnataka High Court
Mr Micheal Pinto vs Mr Henry Pinto on 25 April, 2026
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 676 OF 2008 (RES)
C/W
REGULAR FIRST APPEAL NO. 662 OF 2008 (PAR)
IN R.F.A. NO.676 OF 2008
BETWEEN:
1. MR MICHEAL PINTO
AGED ABOUT 62 YEARS
S/O LATE MR. G.B. PINTO
SINCE DEAD BY HER LR'S
1(a) MRS. CLEMENT MARIA PINTO,
AGED ABOUT 70 YEARS,
W/O LATE MICHAEL PINTO
ST. ANTONY'S BUILDING
8TH CROSS, VIJAYAPURA EXTENSIO
CHICKMAGALURU - 577 101.
2. MR. GLADSON KIRAN PINTO
AGED ABOUT 31 YEARS
3. MRS. SMITHA SHIRLEY PINTO
AGED ABOUT 30 YEARS
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4.
MR. JOHNSON PRAKASH PINTO
AGED ABOUT 28 YEARS
NOS.2 AND 4 ARE REPRESENTED BY
THEIR MOTHER AND GPA HOLDER
MRS. CLEMENTINE MARIA PINTO
W/O MR. MICHAEL PINTO
AGED ABOUT 54 YEARS
R/O ST. ANTHONY BUILDING
DILDAR STREET, VIJAYAPURA EXTENSION,
CHICKMAGALUR CITY -577 101.
... APPELLANTS
(BY SRI. A RAVISHANKAR., ADVOCATE FOR (A2 & A4 ARE REP
BY A1 (A))
AND:
1. MR HENRY PINTO
S/O.LATE G B PINTO DEAD BY LRS
1(a) MRS. GRACE PINTO
W/O.LATE HENRY PINTO
AGED ABOUT 70 YEARS
1(b) MR. STANLEY CYRIL PINTO
AGED ABOUT 52 YEARS
S/O.LATE HENRY PINTO
BOTH ARE R/O.DILDAR STREET,
VIJAYAPURA EXTENSION
CHIKMAGALUR - 577 101.
1(c) MR. JOHN PINTO
AGED ABOUT 49 YEARS
S/O.LATE HENRY PINTO
P B NO.24884
DOHA QATAR
ALSO R/AT.DILDAR STREET,
VIJAPURA EXTENSION,
CHIKAMAGALUR CITY - 577 101.
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1(d) MR. RONALD PINTO
AGED ABOUT 47 YEARS
S/O.LATE HENRY PINTO
DILDAR STREET, VIJAYAPURA EXTENSION
CHIKMAGALUR CITY - 577 101.
1(e) MRS. WINNY FLOSSY D COSTA
AGED ABOUT 45 YEARS
D/O.LATE HENRY PINTO
FLORA BEACH,
INDL COMPANY, P B NO.46536,
ABU DHABI UAE
ALSO R/AT.DILDAR STREET,
VIJAPURA EXTENSION,
CHIKAMAGALUR CITY - 577 101.
1(f) MRS. FLANY D SOUZA
AGED ABOUT 43 YEARS
D/O.LATE HENRY PINTO
DILDAR STREET,
VIJAYAPURA EXTENSION,
CHIKMAGALUR CITY - 577 101.
1(g) MRS. BLANY PINTO
AGED ABOUT 41 YEARS
D/O.LATE HENRY PINTO
TOYOTA CO, POST BOX NO.3168,
RUWI, SULTANATE OF OMAN,
ALSO R/AT.DILDARSTREET,
VIJAYAPURA EXTENSION,
CHIKMAGALUCITY - 577 101.
1(h) MR. DONALD BHARATH PINTO
AGED ABOUT 39 YEARS
S/O.LATE MR. HENRY PINTO
C/O.HELEN PINTO
K M BROTHERS
NATIONAL COMPANY,
P B NO.3962
ABU DHABI U A E,
-4-
ALSO R/AT.DILDAR STREET,
VIJAYAPURA EXTENSION,
CHIKMAGALUR DISTRICT - 577 101.
2
MR. CHARLES PINTO
S/O LATE G B PINTO
SINCE DEAD BY LRS
2(a) MRS. JULIANA PINTO
AGED ABOUT 67 YEARS
W/O.LATE CHARLES PINTO
AGED ABOUT 67 YRS
2(b) MR. ZEPHRIN CLIFFORD PINTO
AGED ABOUT 48 YEARS
S/O.LATE MR CHARLES PINTO
2(c) MR. SAMUEL PINTO
AGED ABOUT 41 YEARS
S/O.LATE MR CHARLES PINTO
2(d) MRS. DAISY FERNANDES
AGED ABOUT 47 YEARS
D/O.LATE CHARLES PINTO
W/O.JOHN FERNANDES
2(e) MRS. SOPHIA BANU FERNANDES
AGED ABOUT 42 YEARS
S/O.LATE CHARLES PINTO
W/O.BIANY FERNAND
2(b) TO 2(e) ARE REPRESENTED
BY THERIR MOTHER & DULY CONSTITUTED
ATTORNEY JULIANA PINTO ALL
R/O.BEN THOMSON
APARTMENT, 1ST FLOOR,
VALENCIAKANANADY,
MANGALORE CITY.
3. MRS. CECILIA MENEZES
AGED ABOUT 73 YEARS
W/O.LATE HARRY MENEZES
COFFEE PLANTER 'GLAD VILLA'
-5-
DOOR NO.471/40, 7TH CROSS,
7TH BLOCKJAYANAGAR WEST,
BANGALORE-560 082.
3(a) MRS. GLADYS MENEZES
AGED ABOUT 50 YEARS
W/O SRI. SUDAMSHU
R/AT ST. ANTHONY'S ESTATE
HALSOOR POST
BALEHONNUR
CHICKMAGALURU - 577 112.
4 MRS. GRETIA GEORGE
AGED ABOUT 63 YEARS
W/O.K S GEORGE
ST ANTHONY'S VILLA
117, 6TH STREET, BANK AVENUE,
BABUSAPALYA, BANASWADI,
BANGALORE-560 043.
5 MRS. CELENA PINTO
AGED ABOUT 38 YEARS
W/O.LATE JAMES PINTO
SINCE DEAD BY LRS
6 MR. LOYED PINTO
AGED ABOUT 38 YEARS
S/O.LATE JAMES PINTO
7. MRS. LARA FERNANDES
AGED ABOUT 41 YEARS
D/O LATE MR. JAMES PINTO
NOS. 5 TO 7 ARE R/AT
FLAT NO.2, YAMUNA OPP
TO ST MARY' S CONVENT,
MULUND WEST, MUMBAI - 400 080.
V/O DATED 10.07.2023 R6 AND R7 ARE TREATED BY LRS
OF R5
... RESPONDENTS
(BY SRI. V. SRINIVAS, ADVOCATE FOR
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SRI. SUMANTH L BHARADWAJ., ADVOCATE FOR R1(A&B) &
FOR R2 (A TO E);
SRI. M. SUDHAKAR PAI., ADVOCATE FOR R1 (D, E, F, G;
SRI. VINOD KUMAR D. KOTABAGI., ADVOCATE FOR R3 (A);
R1 (C), R1 (H) R4, R6 & R7 ARE SERVED AND UNREPRESENTED;
V/O DATED 10.07.2023, R6 AND R7 ARE TREATED AS LRS OF
DECEASED R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
29.02.2008 PASSED IN OS.NO.2/2000 ON THE FILE OF THE
PRL.DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE SUIT
FOR ISSUE OF LETTER OF ADMINISTRATION,
IN R.F.A. NO.662 OF 2008
BETWEEN:
1. MR MICHEAL PINTO
SINCE DEAD BY HER LR'S
1(a) MRS. CLEMENT MARIA PINTO,
AGED ABOUT 70 YEARS,
W/O LATE MICHAEL PINTO,
1 (b) MR. GLADSON KIRAN PINTO
AGED ABOUT 47 YEARS
1 (c) MRS. SMITHA SHIRLEY PINTO
@SMITHA SHIRLEY AGERA
AGED ABOUT 46 YEARS
1 (d) MR. JOHNSON PRAKASH PINTO
AGED ABOUT 43 YEARS
ALL ARE RESIDING AT
ST. ANTONY'S BUILDING,
8TH CROSS, VIJAYAPURA EXTENSION,
MALLANDUR ROAD,
CHICKMAGALUR-577 101.
... APPELLANTS
(BY SRI. A RAVISHANKAR., ADVOCATE)
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AND:
1. MR HENRY PINTO
S/O.LATE G B PINTO DEAD BY LRS
1(a) MRS. GRACE PINTO
W/O.LATE HENRY PINTO
AGED ABOUT 70 YEARS
1(b) MR. STANLEY CYRIL PINTO
AGED ABOUT 52 YEARS
S/O.LATE HENRY PINTO
BOTH ARE R/O.DILDAR STREET,
VIJAYAPURA EXTENSION
CHIKMAGALUR - 577 101.
1(c) MR. JOHN PINTO
AGED ABOUT 49 YEARS
S/O.LATE HENRY PINTO
P B NO.24884
DOHA QATAR
ALSO R/AT.DILDAR STREET,
VIJAPURA EXTENSION,
CHIKAMAGALUR CITY - 577 101.
1(d) MR. RONALD PINTO
AGED ABOUT 47 YEARS
S/O.LATE HENRY PINTO
DILDAR STREET, VIJAYAPURA EXTENSION
CHIKMAGALUR CITY - 577 101.
1(e) MRS. WINNY FLOSSY D COSTA
AGED ABOUT 45 YEARS
D/O.LATE HENRY PINTO
FLORA BEACH,
INDL COMPANY, P B NO.46536,
ABU DHABI UAE
ALSO R/AT.DILDAR STREET,
VIJAPURA EXTENSION,
CHIKAMAGALUR CITY - 577 101.
-8-
1(f) MRS. FLANY D SOUZA
AGED ABOUT 43 YEARS
D/O.LATE HENRY PINTO DILDAR
STREET, VIJAYAPURA EXTENSION,
CHIKMAGALUR CITY - 577 101.
1(g) MRS. BLANY PINTO
AGED ABOUT 41 YEARS
D/O.LATE HENRY PINTO
TOYOTA CO, POST BOX NO.3168,
RUWI, SULTANATE OF OMAN,
ALSO R/AT.DILDARSTREET,
VIJAYAPURA EXTENSION,
CHIKMAGALUCITY - 577 101.
1(h) MR. DONALD BHARATH PINTO
AGED ABOUT 39 YEARS
S/O.LATE HENRY PINTO
C/O.HELEN PINTO
K M BROTHERSNATIONAL COMPANY,
P B NO.3962
ABU DHABI U A E,
ALSO R/AT.DILDAR STREET,
VIJAYAPURA EXTENSION,
CHIKMAGALUR DISTRICT - 577 101.
2
MR. CHARLES PINTO
S/O LATE G B PINTO
SINCE DEAD BY LRS
2(a) MRS. JULIANA PINTO
AGED ABOUT 67 YEARS
W/O.LATE CHARLES PINTO
AGED ABOUT 67 YRS
2(b) MR. ZEPHRIN CLIFFORD PINTO
AGED ABOUT 48 YEARS
S/O.LATE MR CHARLES PINTO
2(c) MR. SAMUEL PINTO
AGED ABOUT 41 YEARS
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S/O.LATE MR CHARLES PINTO
2(d) MRS. DAISY FERNANDES
AGED ABOUT 47 YEARS
D/O.LATE CHARLES PINTO
W/O.JOHN FERNANDES
2(e) MRS. SOPHIA BANU FERNANDES
AGED ABOUT 42 YEARS
S/O.LATE CHARLES PINTO
W/O.BIANY FERNAND
2(b) TO 2(e) REP BY THEIR MOTHER & DULY
CONSTITUTED
ATTORNEY JULIANA PINTO ALL
R/O.BEN THOMSON
APARTMENT, 1ST FLOOR,
VALENCIAKANANADY,
MANGALORE CITY.
3. MRS. CECILIA MENEZES
AGED ABOUT 73 YEARS
W/O.LATE HARRY MENEZES
COFFEE PLANTER GLAD VILLA
DOOR NO.471/40, 7TH CROSS,
7TH BLOCKJAYANAGAR WEST,
BANGALORE-560 082.
3(a) MRS. GLADYS MENEZES
AGED ABOUT 50 YEARS
W/O SRI. SUDAMSHU
R/AT ST. ANTHONY'S ESTATE
HALSOOR POST
BALEHONNUR
CHICKMAGALURU - 577 112.
4 MRS. GRETIA GEORGE
AGED ABOUT 63 YEARS
W/O.K S GEORGE
ST ANTHONY'S VILLA
117, 6TH STREET, BANK AVENUE,
BABUSAPALYA, BANASWADI,
BANGALORE-560 043.
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5 MRS. CELENA PINTO
AGED ABOUT 38 YEARS
W/O.LATE JAMES PINTO
SINCE DEAD BY LRS
6 MR. LOYED PINTO
AGED ABOUT 38 YEARS
S/O.LATE JAMES PINTO
7. MRS. LARA FERNANDES
AGED ABOUT 41 YEARS
NOS. 5 TO 7 ARE R/AT
FLAT NO.2, YAMUNA OPP
TO ST MARY' S CONVENT,
MULUND WEST, BOMBAY - 400 080.
V/O DATED 10.07.2023 R6 AND R7 ARE TREATED BY LRS
OF R5.
... RESPONDENTS
(BY SRI. V. SRINIVAS, ADVOCATE FOR
SRI. SUMANTH L BHARADWAJ., ADVOCATE FOR
R1(A&B) & FOR R2 (A TO E);
SRI. M. SUDHAKAR PAI., ADVOCATE FOR R1 (D, E, F, G);
SRI. VINOD KUMAR D. KOTABAGI., ADVOCATE FOR R3 (A);
R1 (C), R1 (H) R4, R6 & R7 ARE SERVED AND UNREPRESENTED;
V/O DATED 10.07.2023, R6 AND R7 ARE TREATED AS LRS OF
DECEASED R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
29.02.2008 PASSED IN OS.NO.3/2000 ON THE FILE OF THE
PRL.DISTRICT AND SESSIONS JUDGE, CHIKMAGALUR,
DECREEING THE SUIT FOR DECLARATION PARTITION AND
SEPARATE POSSESSION.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 26.02.2026 FOR JUDGMENT COMING ON
FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
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CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) These two appeals against the common judgment and decree dated 29.02.2008 passed in O.S.No.2/2000 and O.S.No.3/2000 on the file of the Principal District Judge at Chikmagaluru (hereinafter referred to as 'Trial Court' for short), in and by which, the trial Court has dismissed the suit in O.S.No.2/2000 filed by the original plaintiff Mr. Michael Pinto and his sons for grant of letter of administration and has decreed the suit in O.S.No.3/2000, filed by the original defendant-
Mr.Henry Pinto for partition and separate possession of 1/6th share in the suit schedule property.
2. Subject matter of the above suits is:
Immovable property consisting of Mangalore Tiled House called St. ANTHONY BUILDING built on Site No.1 and 1-A bearing Municipal No.2613/2614, Present Khata No.2933, Present Assessment No.2999 measuring 82 feet 9 inches East to West on the southern side, and 67 feet East to West on the Northern side, and 102 feet and
3 inches North to South on the Eastern side and 53 feet North to South on the western side situated in Vijayapura Extension, Chikmagalur City, bounded on:
East by : Dildar Street, West by : Municipal Drain, North by : Vijayapura Main Road and South by : Mallandur Road.
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Two movable properties namely,
(i) iron safe for storing cash, jewels and other valuables valued at Rs.5,000/- and
(ii) One cot, one Almirah, 4 chairs valued at Rs.1,000/-
(hereinafter referred to as 'suit schedule property').
3. Suit schedule property belong to one G.B.Pinto, propositus of the parties to this lis. For the purpose of convenience, Genealogy of said G.B.Pinto, is extracted hereunder;
FAMILY TREE OF LATE G.B. PINTO G..B. PINTO S/O AUGUSTINE PINTO DD. 14.09.1993 Edwin Pinto Henry Pinto Charles Pinto James Pinto Michael Pinto Cecillia Greta (Not heard) since dead by Lrs Menezes George Since 3 decades) Since Dead by LRs Since dead by LRs Celena Pinto Dead by LRs
a) Grace Pinto a) Juliana Pinto a) Clement Maria
b) Stanley Cyril b) Zephrin Pinto (Wife) Pinto Clifford Pinto Lloyd Pinto
c) John Pinto c) Samuel Pinto b) Gladson Kiran
d) Ronal Pinto d) Daisy Fernandes Pinto
e) Winny e) Sophia Lara Fernandes c) Smitha Shirley Flossy D' Costa Banu Fernandes Pinto
f) Flany D' Costa
g) Blany Pinto d) Johnson
h) Donald Prakash Pinto Bharath Pinto
4. Thus, admittedly G.B. Pinto stated to have passed away on 14.09.1993 leaving behind his five sons and two daughters, namely Edwin Pinto, Henry Pinto, Charles Pinto, James Pinto,
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Michael Pinto, Cecillia Menezes and Greta George as his legal heirs. Edwin Pinto the first son stated to have not been heard for over 3 decades. James Pinto, the fourth son of G.B.Pinto passed away leaving behind his widow, a son and a daughter.
Facts of the case in O.S.No.3/2000 (old O.S.No. 118/1993) :
5. Said suit in O.S. No.3/2000 is filed by Henry Pinto the second son of G.B.Pinto, for partition and separate possession of suit schedule property contending inter alia;
(a) that G.B.Pinto, passed away intestate on 14.09.1993. Wife of G.B.Pinto predeceased him. That upon his demise, sons and two daughters have succeeded to the suit schedule property in equal shares each being entitled to 1/6th share therein. That he had been given a small portion of the house in the suit schedule property by his father where he is residing, while his father was living in another portion till his demise. He was looking after his father. There was also a maid girl by name Florina Dalmeda, who was looking after late G.B.Pinto and she was treated like a daughter by G B Pinto. Michael Pinto, the fifth son was not in cordial terms with the father and was residing in a rented house.
(b) That G.B. Pinto was suffering from serious liver disease, cough, blood pressure and could not bend his legs and could not walk and was aneamic. He was under
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continuous medical treatment since a very long time. Since 1980 his condition further deteriorated and was to be always on bed. His eyesight was blurred, memory faded and was trembling. In one of such occasions of his serious illness, Michael Pinto and his wife, who came to assist in looking after their father, forcibly remained in the house. They began to take control of the house and also the father. Later on, they threatened and sent out Florine Dalmeda. They used to exercise undue influence and authority and did not allow other family members to go and see their father for taking care of him. Father was kept in a room and no one was allowed to see him. They used to lock the house whenever they used to go out of the house. Michael Pinto is very selfish, unreceptive and prepared to do anything to suit his requirement. His wife Smt.Clement Maria Pinto being an Ex-Municipal Councilor of Chikamagalur is very influential and both of them were harassing the plaintiff and had even assaulted his son Donald Pinto and daughter Winny Flossy D'costa, for which a case was filed.
(c) After the death of G.B. Pinto all his children agreed to divide the suit schedule property except Michael Pinto.
He started to collect the rents from the tenants in the schedule premises without giving accounts. He even filed application for change of khatha in the Municipal Council, Chikamagalur to his name. On coming to know of this with the consent of others, Henry Pinto objected to and sought for change of khatha in the joint names of all the heirs of late G.B. Pinto in respect of suit schedule property.
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Hence, the suit for partition and separate possession.
6. Michael Pinto, fifth son of G.B. Pinto who is arrayed as defendant No.2 in the said suit filed his written statement contending interlia:
a) that G.B.Pinto had executed Will dated 27.09.1984 duly registered in the office of Sub-Registrar in terms of which he had created life interest in his favour and after his demise the properties would go to his children. That he was directed to pay Rs.30,000/- to Henry Pinto, the plaintiff, Rs.30,000/- to James Pinto and Rs.20,000/- to Charles Pinto, Rs.10,000/- to Mrs.Celilia Menezes, defendant No.3, Rs.20,000/- to Mrs.Greta George, defendant No.4.
(b) That he had intimated the same to his brothers and sisters and to the legal representatives of James Pinto, the deceased brother and he had also expressed his willingness and readiness to pay the said sums within one year. That he had already paid Rs.20,000/- to Charles Pinto who had issued a receipt. That sum of Rs.30,000/- was to be paid to Henry Pinto on he vacating the portion of suit schedule property failing which he was entitled to have Henry Pinto vacated.
(c) He has denied the allegations of he and his wife taking control of the household articles and G.B.Pinto. That G.B.Pinto was quite healthy and he had even attended marriage of the grand daughter Glady Menezes at Bangalore in the year 1985. That he lived for 9 years after
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execution of the Will. G.B.Pinto had raised loan from Canara Bank and conducted the marriage of Florine Dalmeda and she was residing with her husband at Harihar. As such, the allegation of he threatening to drive her out of the home is denied.
(d) That he went to Kuwait during September 1982 and he came to India in December 1985. His father G.B.Pinto had persuaded him to stay back in India and not to go back to Kuwait. Michael Pinto was staying separately with his wife till they were invited by G.B.Pinto to stay with him in the suit property. That the movables mentioned in the Will were worthless even during the lifetime of G.B.Pinto. His old car was sold by him to one Syed Muneer Ahmed even during his life time.
(e) That since Henry Pinto and others did not show the willingness to accept the money offered by him as per the directions in the Will dated 27.09.1984 he decided to deposit the same in the Court of District Judge, Chikamagulur where he and his sons have already filed petition in P& SC No.1/1994 for grant of letter of administration in respect of the said Will. Hence sought for dismissal of the suit.
Facts in O.S.No.2/2000 earlier P & SC No.1/1994:
7. Michael Pinto, and his sons, filed an application on 16.07.1994 under Section 276 of the Indian Succession Act,
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1925 in P & SC No.1/1994 against the other children and grandchildren of G. B. Pinto, contending inter alia;
(a) that G. B. Pinto passed away on 14.09.1993 leaving behind a Will and testament dated 27.09.1984 which has been registered as Document No.21/1984-85, in Book 3, Volume 16, Pages 91-95, Sub-Registrar, Chikamagalur. The said Will was duly executed by G.B.Pinto in the presence of witnesses. That by virtue of the said last Will and testament, the entire suit schedule property has been bequeathed in his favour for life and after his lifetime to his children.
(b) That according to the instructions in paragraphs 3, 4 and 5 of the Will, Michael Pinto was required to pay Henry Pinto a sum of Rs.30,000/- at the time of he handing over possession of portion of the house occupied by him. Michael Pinto was also required to pay a sum of Rs.30,000/- to Mr.Charles Pinto, sum of Rs.20,000/- to Mr.James Pinto, sum of Rs.10,000/- to Mrs.Cecillia Pinto and Rs.20,000/- to Ms.Greta George. These amounts were to be paid within a period of one year from the date of death of Mr.G.B.Pinto. It was also made clear, Henry Pinto was not entitled for Rs.30,000/- if he did not vacate the portion of the house occupied by him. That is Michael Pinto being ready and willing to pay the sum as mentioned in the Will to his brothers and sisters.
(c) That without even referring to the registered Will Henry Pinto instituted a suit for partition and separate possession in O.S.No.118/1993. The value of the assets
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likely to come to the hands of the Michael Pinto would not exceed Rs.5,10,000/- in aggregate.
(d) Hence sought for issuance of letter of administration to the property and credits of the said deceased with a copy of the Will annexed to have the effect throughout the State of Karnataka.
8. Henry Pinto filed statement of objections;
(a) denying the execution of the Will by G.B Pinto and instruction issued as claimed by Michael Pinto. It is contended that G. B. Pinto and his wife were living in portion of the schedule property. More than 2/3rd portion is rented to various persons. That he learnt about the alleged Will only when he received the copy of the petition in the said case and also about the earlier registered Will made by late G. B. Pinto dated 08.09.1981.
(b) That the contents of the earlier Will dated 08.09.1981 revealed that in the schedule house all the sons and daughters and also the said maid servant were given share i.e., (i) 25% to Charles Pinto, (ii) 20% to James Pinto, (iii) 20% to Henry Pinto , (iv) 15% Michael Pinto, (v) 5% Mrs. Cecilia Menezes, (vi) 10% to Mrs. Greta George and (vii) 5% to maid servant Florine Dalmeda. A provision was also made in the case of the first son Edwin were to return, he should be given 10% of the property, 5% each from the shares of Charles Pinto and James Pinto. This Will comes into effect after the
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death of the testator G. B. Pinto. In case he dies earlier it should go to his wife Elis Pinto and after her death to all the persons as stated above. Ultimately the Will to come into effect after his death. Charles Pinto, James Pinto and Mrs.Cecilia Menezes were appointed as Executors. There was a further condition that in case of any sale by the sharers it would only be between his legatees and not to any outsider. His wish under the said Will was that at any cost the schedule property must remain in the hands of his children and grandchildren.
(c) That there was no special preference to Michael Pinto or his sons only to have the full share of the huge valuable property and denying shares to other heirs and to the beloved maid servant girl.
Contending as above sought for dismissal of the petition.
9. In view of the aforesaid statement of objections, the said petition in P & SC No.1/1994 was converted into a suit in O.S.No.2/2000. The suit in O.S.No.118/1993 filed by Henry Pinto was re-numbered as O.S.No.3/2000. Both the matters were made over through the Principal District Judge, Chikamagalur for common trial and disposal.
10. Considering the pleadings of the parties the trial Court framed the following issues in O.S.No.2/2000.
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"1. Whether the plaintiffs prove that Mr. G.B. Pinto executed a registered Will dated 27.09.1984 and bequeathed the suit schedule property in favour of plaintiff No.1?
2. Whether the plaintiff prove that they are entitled for Letters of Administration as claimed?"
11. Following issues are framed in O.S. No.3/2000;
"1. Whether the defendant No.2 proves due execution of Will dated 27.09.1984 by his deceased father G. B. Pinto?
2. Whether the defendant No.2 proves that under Will dated 27.09.1984 his deceased father G. B. Pinto bequeathed schedule property to his children with life interest to him?
3. Whether defendant No.2 proves the bequest of cash sum by deceased G. B. Pinto to plaintiff and other defendants as stated in paragraph 4 of the written statement?.
4. Whether the defendant No.2 proves that inspite of offer to pay Rs.30,000, plaintiff refused to evict portion of the schedule property in his occupation as per the terms of the bequest?
5. Whether the plaintiff proves that ever since September 1993, defendant No.3 collected rent from the tenants of schedule property and total quantum of rent is more than Rs.10,000 per month?
6. Whether suit is not maintainable for not impleading children of 2nd defendant?
7. Whether the suit is not maintainable for the reasons stated in paragraph 14 of the written statement?
8. Whether the plaintiff is entitled to decree of partition and separate possession of 1/6th share in schedule property?
9.What order or decree? "
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12. Michael Pinto, the original plaintiff in O.S.No.2/2000, including himself has examined seven witnesses as PW1 to PW7 and has exhibited 22 documents marked as Ex.P1 to Ex.P22.
Two witnesses have been examined on behalf of defendants as DW1 and DW2 and have exhibited 11 documents marked as Ex.D1 to Ex.D11.
13. On appreciation of the evidence, the trial Court has dismissed the suit in O.S.No.2/2000 and decreed the suit in O.S.No.3/2000 as sought for.
14. Being aggrieved by the dismissal of suit in O.S No.2/2000, RFA No.676/2008 has been filed by Michael Pinto and his three children and being aggrieved by decreeing of the suit in OS No.3/2000, Michael Pinto who was defendant No.2 in the said suit has filed RFA No.662/2008.
SUBMISSIONS:
15. Sri. A.Ravishankar, learned counsel appearing for the appellants extensively taking this Court through the pleadings, oral and documentary evidence, as well as the written synopsis submitted:
(a) That G.B.Pinto was healthy, active till his demise, barring minor age-related ailments. That the Will
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dated 27.09.1984 in question was a registered Will, duly executed in the manner known to law and that the said G.B. Pinto passed away on 14.09.1993, which is 9 years subsequent to execution of the Will. That the said Will was handed over by G. B. Pinto himself during his lifetime to his fifth son Michael Pinto.
(b) That Michael Pinto in furtherance to the terms of the Will has offered to pay the amount as directed thereunder by issuing a notice dated 28.06.1994 as per Ex.P18. Ex.P9 is the reply given by Mrs.Celena Pinto, wife of late James Pinto. Ex.P14 is the receipt issued by Charles Pinto for having received Rs.20,000/-. Thus, except Henry Pinto all other legal heirs of G.B. Pinto have consented and concurred for the disposition made by G.B. Pinto in terms of the aforesaid Will.
(c) That though Henry Pinto has spoken extensively about the earlier Will executed by G.B. Pinto, in the year 1981 has however not produced the same before the Court. DW1 in her evidence at paragraph 11 has admitted to be in possession of the previous Will however has immediately retracted from the same. From this an adverse inference is required to be drawn with regard to defendants withholding the best evidence.
(d) that the finding and inference drawn by the trial court regarding disposition made in the earlier Will to
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be just and proper compared to the subsequent Will, where the entire suit property has been given to Michael Pinto and only money has been given to the other children, to be unnatural and improbable is erroneous and unjustified. Such an inference could not have been drawn by the trial Court, inasmuch as, the same would not amount to suspicious circumstances, more particularly, when the earlier Will had not been produced before the Court to indicate the shares given to them under the said Will. That it is not for the beneficiary to determine the share. That the trial Court could not have come to the conclusion of the instruction given in the Will directing Michael Pinto to pay Rs.30,000/- to Henry Pinto and asking Henry Pinto to vacate the portion in his occupation to be harsh. The intention of the testator needs to be honored and the Court cannot substitute its view for the same.
(e) That though the trial Court has accepted that Michael Pinto has produced sufficient material on record to show the signature of the testator to be genuine, however it has erred in holding that Michael Pinto has not established the fact that the scribe and the attesting witnesses had seen the testator signing the Will.
(f) Gulamenabhi one of the attesting witnesses has been examined as PW4. He has spoken about his acquaintance with the testator and has also identified his signature. Merely because he has deposed to
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have not been able to recollect certain events as they had taken place about 25 years ago, the trial Court could not have discarded his evidence.
(g) Dr.Prithveshwara Rao another witness was in Russia since 1997 and therefore to identify his signature one M.Hussain Ahamed has been examined as PW1, who was working as Senior Health Inspector and he was close acquaintance of Dr. Prithveshwar Rao since 1972. He has identified the signature of Dr. Prithveswar Rao which is marked as Ex.P1(a). PW1 was examined in furtherance to the requirement of Sections 68 and 69 of the Evidence Act, 1892 which the trial Court has lost sight of. The trial Court in the light of the aforesaid evidence, has erroneously concluded that no kith and kin of Dr.Pruthvishwara Rao was examined to be the reason to decline to accept the evidence of said witness.
(h) H. R. Vishwanath-PW2 has been examined to identify the signature of the scribe M. A. Shivaswamy, an advocate, who died in a road accident in 1997. The said witness has produced Ex.P2, a letter dated 22.08.1994 written by Advocate Shivaswamy to PW2 stating that there are no amounts outstanding to him. The signature at Ex.P(1)(b) and Ex.P(2)(a) are the signatures of M.Shivaswamy, which are identical in nature. The trial court has failed to take into consideration signature of M. A. Shivaswamy on Ex.P5(a), which is
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a letter addressed by M. A. Shivaswamy to LIC of India, which was produced through PW3-Charan, officer of LIC, who is an independent witness.
(i) Puttabuddi PW5, was the Sub-Registrar at the relevant point of time when the Will was registered. He has spoken about the execution of Will in his presence and has also spoken about signature of the executant that was identified by Advocate. M.A.Shivaswamy. He also stated about he knowing Shivaswamy as he was living as a tenant near his house during his tenure as a Sub-Registrar, Chikamagalur. The trial Court however has erred in holding his evidence to be of no help to the plaintiff as he had not stated that the executant had not signed the Will or attested the Will in his presence.
(j) That examination of Sri Puttabuddi, in the light of the facts and circumstances and the provisions of Section 71 of the Evidence Act, 1892 is acceptable and the same tantamount to examination of a attesting witness.
(k) There was no reason for the trial Court not to have relied upon the evidence of maid Florine- PW7 who has spoken about G. B. Pinto of being very active and died a natural death due to old age.
(l) That there is complete compliance with the requirement of Sections 68, 69, 71 of Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925 in proving the Will.
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(m) That DW.1 has admitted and identified the signature of her father-in-law the testator at Ex.P1(j) and Exs.P1(k). She has also admitted to said G. B. Pinto having sound mind of disposition which is reiterated by her daughter Winny Flossy D'Costa - DW2. This evidence of DW1 and DW2 read in the light of the evidence given by PW7 with regard to the status of health of the testator G. B. Pinto, there cannot be any reason to doubt about his physical and mental capacity to execute the Will.
(n) There is no discussion by the trial Court of the evidence led by defendants. This was necessary in the light of the fact that Michael Pinto had discharged the initial burden of proving the execution of the Will in the manner known to law. Since the defendants had set up the plea of document being concocted, and had alleged the execution of the Will being under suspicion, the onus had shifted on the defendants to have dispelled the said allegation.
(o) He relied upon the following judgments in support of his submissions;
(i) PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARATNAM AND OTHERS reported in AIR 2005 SC 4362.
Referring to paragraphs 22, 24 and 25 of the said judgment, he submitted that the endorsement by the Sub-Registrar that the executant had acknowledged before him the execution would amount to
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attestation and that a presumption under Section 114 of the Evidence Act was required to be drawn.
(ii) METAPALLI LASUM BAI (SINCE DEAD) AND OTHERS VS. METAPALLI MUTHIH (D) BY LRS. reported in 2025 SCC Online 1488.
Referring to paragraph 9 of the said judgment, he submitted that though the defendant had disputed the genuineness of the Will, no independent evidence has been led to prove the circumstances under which the Will could said to be shrouded with suspicion. Will being registered and the signature being admitted the presumption ought to be raised with regard to its genuineness.
(iii) SMT. SULOCHANA TAI V. SUNDAR AND ANOTHER reported in ILR 2005 KAR. 1131.
Referring to paragraph 7 he submitted that mere fact that plaintiff was allotted a moity share in the schedule property would not be a suspicious circumstance and the Will could be proved raising presumption under Section 90 of the Evidence Act and the suspicious circumstance have to be averred and proved.
(iv) He also referred to the judgment of the Apex Court in the case of SAVITHRI AND OTHERS V. KARTHYAYANI AMMA AND OTHERS reported in (2007) 11 SCC 621, wherein it has been held that when the Will is registered and the testator was
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living for more than 7 years after the execution and did not take any steps to cancel the same, that itself is a factor which the Court may have to take into consideration to uphold the Will.
Contending as above, sought for allowing of the appeal and dismissal of the suit in O.S.No.3/2000 filed by the Henry Pinto-defendant.
16. Per contra, Sri Srinivas, learned counsel appearing for the defendants/respondents submitted that:
(a) admittedly PW4, who is the attesting witness has not seen the testator affixing signature on the Will thereby, there is no compliance to provisions of Section 63(c) of the Indian Succession Act, 1925.
That there is a contradiction in the deposition of the said witness and he has not supported the case of Michael Pinto, as such he ought to have been cross- examined, absence of which shall lead to drawing adverse inference.
(b) As regards the evidence of M. Hussain-PW1 who has been examined to identify the handwriting of K H Prithveswar Rao, he submitted that the said witness is neither related to Dr. K H Prithveswar Rao nor has he identified the name of Dr. K H.Prithveswar Rao which itself is sufficient to discard his evidence. Therefore, his testimony would not carry any weight.
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(c) That though Michael Pinto - PW6 in his evidence has stated that Dr. K H Prithveshwar Rao has not been in India for about 12 years, he has not named the country in which said Dr.K.H.Prithveshwar Rao was residing. While Hussain-PW1 has specifically used the name of the country to be Russia. Thus there is a serious contradiction between the evidence of PW1 and PW6 which is not trustworthy.
(d) Evidence of Vishwanath-PW2 is of no consequence inasmuch as, the said witness has spoken about Ex.P2 which is a private communication not connected to the suit. Similar is the situation of the evidence of PW3- LIC agent which does not fall within the provisions of the Evidence Act.
(e) That mere proof of signature is not sufficient to accept the genuineness of the Will. Though Puttabuddi the official witness has been examined as PW5, his evidence has been rightly discarded by the trial Court as he has not stated that the Will was read over to the testator in his presence.
(f) PW6 and PW7 have categorically spoken about the previous Will and it is presumed to be in the possession of Michael Pinto and it was his duty to have produced the same. There is no explanation either in the Will or in the pleading by Michael Pinto as to why he alone and his children were chosen
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excluding the others from the shares of the suit property. There is also no reason assigned for the unequivocal distribution of the wealth of the deceased G.B.Pinto.
(g) The Will came into existence only after the suit for partition was filed on 19.11.1993. Petition in P & SC was filed on 16.07.1994 which is long after filing of the partition suit. The legal notice has been issued on 28.06.1994, which is also subsequent to filing of the suit for partition. These circumstances give rise to a very strong suspicion with regard to very coming into existence of said Will. Even assuming the Will was registered the same is not sufficient to uphold its validity.
(h) He relied upon the judgment of the Apex court in the case of DHANIRAM (SINCE DECEASED) THROUGH LR'S AND OTHERS V. SHIVA SING reported in AIR 2023 SC 4787. Referring to paragraphs 8, 9, 20, 21 of the said judgment, he submitted that mere registration would not sanctify the document by attaching to it the presumption of genuineness. Person propounding the Will has to prove that the Will was duly and validly executed and the same cannot be proved by mere signature of the testator on the Will. But the propounder must also prove that the attestation was made properly as required under Section 63(c) of the Succession Act, 1925.
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(i) He referred to the order dated 03.07.2025 passed in RSA No. 100389/2016 connected with RSA No. 100548/2024 and RSA Crob No. 100009/2016 to submit that Michael Pinto has failed to prove the execution of the Will as required under law.
(j) Referring to paragraph 5 of the judgment of the Coordinate Bench of this Court in the case of GIDDAMMA & ANOTHER V. VENKATAMMA (DEAD BY LRS) & OTHERS reported in 2009 ILR Karnataka 992 he submitted that there is no compliance to the requirement of Section 67 and 68, 69 of Evidence Act.
(k) Referring to paragraphs 23 to 28 of the judgment of the Apex Court in the case of BENGA BEHERA AND ANOTHER VS. BRAJA KISHORE NANDA AND OTHERS reported in AIR 2007 SC 1975 he submitted that Section 71 of the Evidence Act is in the nature of safeguard to the mandatory provisions under Section 68 of the Evidence Act to meet the situation where it is not possible to prove the execution of Will by calling the attesting witness though alive. But since Michael Pinto has not complied with the very provisions of Section 65(c) of the Act, he cannot rely upon the provision of Section 71 of the Evidence Act. Hence, seeks for dismissal of the appeal.
17. Heard. Perused the records.
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18. The points that arise for consideration are:
"(i) Whether Michael Pinto- plaintiff in O.S.No.2/2000 has proved the due execution of the Will dated 27.09.1984 by G.B. Pinto.
(ii)Whether Henry Pinto- defendant No.1 has proved that the said Will was concocted and is shrouded with the suspicious circumstances?
(iii) Whether the trial Court is justified in dismissing the suit in O.S.No2/2000 and decreeing the suit of the defendant in O.S.No.3/2000?"
19. Original Plaintiff No.1. -Michael Pinto since deceased is represented by his wife and children as appellant Nos.1(a) to 1(d). Similarly original defendant No.1- Henry Pinto the only contestant, since deceased is represented by his wife and children as respondent Nos.1(a) to 1(h).
POSITION OF LAW -REGARDING PROOF OF WILL:
20. Aspects of proof of Will, construction of terms of the Will, implementation of intention and desire of the Testator having been dealt with by the Apex Court in plethora of Judgments. In the case of Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 :
1976 SCC OnLine SC 368 at page 373 referring to its earlier Judgments at paragraph 10 has held as under:
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N.
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Thimmajamma [AIR 1959 SC 443 : 1959 Supp 1 SCR 426] . The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions :
"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 certainty.
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 68 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 and capable of giving evidence.
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 introduces 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 go 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 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 wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises 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.
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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 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."
In the case of Gurdial Kaur v. Kartar Kaur, (1998) 4 SCC 384 : 1998 SCC OnLine SC 227 at page 386 at paragraph 4 Apex Court has held as under:
4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will.
Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs.
21. The dispute in the present case is with regard to validity and genuineness of the Will dated 27.09.1984 produced and marked at Ex.P1 needs to be adjudicated in the light of the aforesaid position of law. It is appropriate to extract the contents of the Will dated 27.09.1984 produced at Ex.P1, which reads as under:
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«®Äè AiÀiÁ£Éà ªÀÄgÀt ±Á¸À£À ¥ÀvÀæ:
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3. ªÉÄîÌAqÀ £À£Àß ¹ÛgÁ¹Û - ¸ÀévÀÄÛ ºÁUÀÆ CzÀgÀ°ègÀĪÀ J¯Áè ZÀgÀ ¸ÀévÀÄÛUÀ¼ÀÄ CAzÀgÉ £À£Àß CAwªÀÄ PÁ®zÀ°è £À£Àß §½ EgÀ§ºÀÄzÁzÀ £ÀUÀzÀÄ ºÀt, £À£Àß 1938 - 39 £Éà ªÀiÁqÉ¯ï ªÉÆÃj¸ï - 12 JAªÉʹ - 421 £Éà £ÀA§j£À PÁgÀÄ, PÀ©âtzÀ ¥ÉnÖUÉ, ¦ÃoÉÆÃ¥ÀPÀgÀtUÀ¼ÀÄ (¥sÀjßÃZÀgï) ¥ÁvÉæ ªÀUÉÊgÉ EvÁå¢ J¯Áè ¸ÀévÀÄÛUÀ¼ÀÄ £À£ßÀ ªÀÄgÀuÁ £ÀAvÀgÀ £À£Àß LzÀ£Éà ªÀÄUÀ ªÉÄÊPÉ¯ï ¦AmÉÆÃUÉ ¸ÀA¥ÀÆtðªÁV ¸ÉÃgÀvÀPÀÌzÀÄÝ: ¸ÀzÀj ªÉÄÊPÉ¯ï ¦AmÉÆÃ, £À£Àß JgÀqÀ£Éà ªÀÄUÀ ºÉ¤æ ¦AmÉÆÃUÉ gÀÆ: 30,000 ªÀÄƪÀvÄÀ Û ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß, ªÀÄÆgÀ£Éà ªÀÄUÀ ZÁgÀè¸ï ¦AmÉÆÃUÉ gÀÆ. 20,000/- E¥ÀàvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß £Á®Ì£Éà ªÀÄUÀ eÉêÀiïì ¦AmÉÆÃUÉ gÀÆ. 20,000/- E¥ÀàvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß eÉêÀiïì ¦AmÉÆÃUÉ gÀÆ. 20,000/- E¥ÀàvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß £À£Àß ªÀÄUÀ¼ÀÄ ¹¹°AiÀiÁ ¦AmÉÆÃUÉ gÀÆ. 10,000/- ºÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß ºÁUÀÆ £À£Àß E£ÉÆߧ⠪ÀÄUÀ¼ÀÄ UÉæÃmÁ ¦AmÉÆÃUÉ gÀÆ. 20,000/- E¥ÀàvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÆß £ÀUÀzÀÄ ºÀtªÀ£ÀÄß £Á£ÀÄ ¥ÁªÀwAiÀiÁzÀ MAzÀÄ ªÀgÀĵÀzÀ°è PÉÆqÀvÀPÀÌzÀÄÝ.
4. £À£Àß ªÉÆzÀ®£Éà ªÀÄUÀ Jré£ï ¦AmÉÆà fêÀAvÀªÁVgÀĪÀ ¸ÀA¨sÀªÀ E®è.
ºÁUÉãÁzÀgÀÆ CªÀ£ÀÄ fêÀAvÀªÁVzÀÄÝ ªÀÄ£ÉUÉ ªÁ¥À¸ÀÄì §AzÀgÉ CªÀ¤UÉ gÀÆ.1,00/- ºÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ªÉÄÊPÉ¯ï ¦AmÉÆà PÉÆqÀvÀPÀÌzÀÄÝ,
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5. £À£Àß JgÀqÀ£Éà ªÀÄUÀ ºÉ¤æ ¦AmÉÆà vÀ£Àß ªÀÄPÀ̼À ¸ÀªÉÄÃvÀ £Á£ÀÄ ºÁ°Ã ªÁ¥À¸ÁVgÀĪÀ ªÀÄ£ÉAiÀÄ zÀQët ¨sÁUÀzÀ°è ªÁ¸ÀªÁVgÀÄvÁÛgÉ, ¸ÀzÀj ºÉ¤æ ¦AmÉÆÃgÀªÀgÀÄ vÀªÄÀ ä ¨sÁUÀzÀ ºÀt gÀÆ. 30,000/- ªÀÄƪÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¥ÀqÉAiÀÄĪÀÅzÀPÉÌ ªÀÄÄAavÀªÁV ªÀÄ£É SÁ°Ã ªÀiÁr ªÉÄÊPÉ¯ï ¦AmÉÆêÀgÀªÀjUÉ ¸Áé¢Ã£À PÉÆqÀvÀPÀÌzÀÄÝ, EzÀPÉÌ vÀ¦àzÀgÉ CªÀgÀ ºÉ¸ÀjUÉ §gÉ¢gÀĪÀ gÀÆ. 30.000/- ªÀÄƪÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¥ÀqÉAiÀÄ®Ä CªÀjUÉ ºÀQÌgÀĪÀÅ¢®è, DzÀgÉ ªÉÄÊPÉ¯ï ¦AmÉÆÃgÀªÀgÀÄ ªÀÄ£É SÁ°Ã ªÀiÁr¹ ¸Áé¢üãÀ ºÉÆAzÀ®Ä CºÀðgÁVgÀÄvÁÛgÉ.
6. ªÉÄîÌAqÀ £À£Àß ¹ÜgÀ¸ÀévÀÄÛ £À£Àß £ÀAvÀgÀ £À£Àß ªÀÄUÀ£À¯Éè G½AiÀĨÉÃPÉA§ ¸ÀzÀÄzÉÝñÀ¢AzÀ §gɹzÀÄÝ - £À£Àß ªÀÄUÀ ªÉÄÊPÉ¯ï ¦AmÉÆà CªÀ£À fëvÀ PÁ®zÀ°è £À£Àß ¹ÜgÀ¸éÀvÄÀ Û£ÄÀ ß ªÀiÁgÁlªÀiÁqÀĪÀÅzÁ°Ã ¨sÉÆÃUÀåAiÀiÁ DzsÁgÀ ªÀiÁqÀĪÀÅzÀPÁÌUÀ°Ã ºÀQÌgÄÀ ªÀÅ¢®è, ªÉÄÊPÉ¯ï ¦AmÉÆãÀ ªÀÄgÀtzÀ £ÀAvÀgÀ ªÉÄîÌAqÀ ¹ÜgÀ ¸ÀévÀÄÛUÀ¼ÀÄ CªÀgÀ ªÀÄPÀ̽UÉ ¸ÉÃgÀ¨ÉÃPÉAzÀÄ PÀqÁØAiÀÄUÉƽ¹gÀÄvÉÛÃ£É ¨ÉÃgÉ AiÀiÁjUÀÆ ºÀQÌgÀĪÀÅ¢®è.
7. F «¯ï ¥ÀvÀæªÀ£ÀÄß £Á£ÀÄ £À£Àß PÀÄlÄA§zÀ J®ègÀ »vÁ¸ÀQÛAiÀÄ£ÀÄß UÀªÄÀ ¤¹ £À£ßÀ ¸ÀéAvÀ EZÉÒ¬ÄAzÀ §gɹgÀÄvÉÛãÉ, EzÀ£ÀÄß £À£Àß ªÀÄPÀ̼ÀÄUÀ¼ÀÄ (ªÀÄPÀ̼ÀÄUÀ¼ÀÄ) AiÀiÁgÀÆ ¥Àæ²ß¸ÀĪÀºÁVgÀĪÀÅ¢®è.
8. £Á£ÀÄ F »AzÉ CAzÀgÉ vÁ. 08.9.1981 gÀ°è §gɹzÀ qÁPÀÄåªÉÄAlÄ £ÀA.15:81 §ÄPï 3 - aPÀ̪ÀÄUÀ¼ÀÆgÀÄ vÁ®ÆèPÀÄ ¸À¨ï jf¸ÁÖçgÀªÀgÀ PÀbÉÃjAiÀÄ°è gÀf¸À×gÀÄ ªÀiÁr¹zÀÄÝ - ¸ÀzÀj «®è£ÀÄß F ªÀÄÆ®PÀ gÀzÀÄÝ ¥Àr¹gÀÄvÉÛÃ£É ºÁUÀÆ FUÀ §gɹzÀ '«¯ï' £À£Àß CAwªÀÄ '«¯ÁèVzÀÄÝ EzÉà HfðvÀªÁUÀvÀPÀÌzÀÄÝ, F »A¢£À «®è£ÀÄß gÀzÀÄÝ¥Àr¹gÀĪÀÅzÀjAzÀ F «®è£ÀÄß gÀÆ. 30.00 UÀ¼À bÁ¥Á PÁUÀzÀzÀ°è §gɹgÀÄvÉãÉ.
9. F '«¯ï' ¥ÀvÀæªÀ£ÀÄß PɼÀPÀAqÀ ¸ÁQëzÁgÀgÀ ¸ÀªÀÄPÀëªÄÀ zÀ°è §gɹzÀÄÝ EzÀgÀ°è §gɹgÀĪÀÅzÀ£ÀÄß N¢ - N¢¹ £À£Àß ºÉýPÉ ¥ÀæPÁgÀ ¸ÀªÀÄ¥ÀðPÀªÁVgÀĪÀÅzÁV M¦à ¸ÁQëzÁgÀgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è gÀÄdĪÀiÁrgÀÄvÉÛãÉ, ¸ÁQëzÁgÀgÀÆ PÀÆqÁ £Á£ÀÄ gÀÄdÄ ªÀiÁrgÀĪÀÅzÀ£ÄÀ ß £ÉÆÃr £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°è vÀªÀÄä ¸ÁQë gÀÄdĪÀiÁrgÀÄvÁÛgÉ.
ªÉÄîÌAqÀ ²æà f.©. ¦AmÉÆà gÀªÀgÀÄ F «®è£ÀÄß £ÀªÀÄä ¸ÀªÀÄPÀëªÀÄzÀ°è ºÉý §gɬĹzÀÄÝ EzÀgÀ°è §gɹgÀĪÀÅzÀ£ÀÄß CªÀgÀÄ £ÀªÀÄä ¸ÀªÀÄPÀëªÀÄzÀ°è N¢-N¢¹ PÉý vÀªÀÄä ºÉýPÉ ¥ÀæPÁgÀ ¸ÀªÀÄ¥ÁPÀªÁVgÀĪÀÅzÁV M¦à £ÀªÀÄä ¸ÀªÄÀ PÀëªÀÄzÀ°è vÀªÀÄä ¸ÀéAvÀ EZÉÒ¬ÄAzÀ gÀÄdÄ ªÀiÁrgÀÄvÁÛgÉ, CªÀgÀÄ gÀÄdÄ ªÀiÁrzÀÝ£ÀÄß £ÁªÀÅUÀ¼ÀÄ £ÉÆÃr CªÀgÀÄ gÀÄdÄ ªÀiÁrzÀ £ÀAvÀgÀ CªÀgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è £ÀªÀÄä ¸ÁQë gÀÄdÄ ªÀiÁjgÀÄvÉÛêÉ.
22. Thus, perusal of the aforesaid terms of the Will-Ex.P1 would indicate that;
(a) Mr. G.B Pinto, had created life interest in favour of original plaintiff/Michael Pinto and thereafter absolute interest in favour of his children namely, the appellant Nos.1(b) to 1(d) herein.
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(b) Original plaintiff No.1/Michael Pinto has been directed to pay certain amount of money to other children of Mr. G.B Pinto as under;
₹ 30,000/- payable to Henry Pinto/defendant No.1 ₹ 20,000/- payable to Charles Pinto/defendant No.2 ₹ 20,000/- payable to James Pinto/ ₹ 10,000/- payable to Cecilia Pinto Menaces, ₹ 20,000/- payable to Greta George, ₹ 10,000/- payable to Edwin Pinto if he was found alive.
(c) Henry Pinto would be entitled to receive the money subject to he vacating and delivering the vacant portion of the southern portion of the suit schedule property to Michael Pinto.
(d) The said Will explicitly refers to cancellation of earlier Will dated 08.09.1981.
Re: POINT No.(i):
23. Plaintiff has examined following witnesses in proof of aforesaid Will -Ex.P1
(a) Sri.Gulamenabhi, the first attesting witness as PW.4.
(b) Since, Dr. K.H. Prithveshwar Rao, second attesting witness is stated to have been outside the Country, one Mr. Hussain Ahmed who claims to be his acquaintance has been examined as PW1.
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(c) The scribe to the said Will is stated to be one Sri. M.A.Shivaswamy who was an advocate. He has not been examined as he was not alive.
(d) Sri. Charan who was working as Administrative Officer in LIC, Chikamagalur has been examined as PW3. The said witness has identified the signatures of aforesaid Dr.K.H.Prithveshwar Rao and M.A. Shivaswamy, the scribe of the Will.
(e) Sri. Puttabuddi, the then Sub-Registrar who had registered the Will has been examined as PW5.
24. According to the plaintiff, examination of the aforesaid witnesses is in compliance with the provisions of Sections 68, 69, 71 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1925.
25. The trial Court however has found that though the aforesaid witnesses have been examined, they fell short of the legal requirement as such has declined to accept the execution of Will at Ex.P1 having been proved in the manner known to law.
26. It is necessary at this juncture to refer to Section 63 of the Indian Succession Act, 1925 which reads as under;
"63. Execution of unprivileged Wills-. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at
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sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
27. It is also necessary to refer to Sections 68 and 69 of the Indian Evidence Act, which reads as under:
"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until 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 and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
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69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
28. Section 63(c) of the Indian Succession Act, 1925 as noted above, contemplates attesting witness to have seen the testator affixing signature. It is in the light of this mandatory requirement, the deposition of sole attesting witness namely, Sri C.Gulamenabhi- PW4 is required to be scrutinized. His examination-in-chief and cross-examination is extracted herein;
Examination-in-chief "I knew and I had seen Late Mr. G.B. Pinto in this case. During the year 1984, I was residing in a rented house at Vijayapura in Chikmagalur. At that time, late Mr. G.B. Pinto was residing in a house situated opposite to the rented house in which I was living.
2. The said late Mr. G.B. Pinto had executed a Will bequeathing his properties under the same in favour of his children who are the plaintiffs and defendants 1 to 7 in the present case.
3. Again I say I do not know any Will having been executed by late Mr. G.B. Pinto at this length of time. At his request I had subscribed my signature on a document. I see my signature on Ex.P.1 now shown to me. It is marked as Ex.P.1(c). Ex.P.1(c) is the signature which I have affixed on Ex.P.1.
4. At this length of time, I also do not know where affixed my signature on Ex.P1 and who were all present at the point of time.
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5. Before I affixed my signature on Ex.P.1 I did not go through the contents of the same.
Cross Examination:
"6. When I affixed my signature at the request of Mr. G.B. Pinto I did not know what was the document on which my signature was being taken. I do not know the contents of the document on which my signature was taken and the exact nature of the document bequeathing the properties under the same. Late Mr. G.B. Pinto himself might have taken me to get my signature on the document. I do not know who are all the other witnesses who have attested the said document. I also do not know when the other witnesses attested the same.
7. I had come to know late Mr. G.B. Pinto since he was residing opposite to my house. I do not know for how many occasions I had moved with him.
8. I do not remember whether I have affixed my signature on the request of Michel Pinto, the son of the deceased."
29. The said witness has categorically deposed that G.B. Pinto bequeathed the property by executing a Will and that he has affixed his signature on the document at the request of G.B.Pinto and he has also recognized and identified his signature.
However, he has pleaded ignorance about the nature of the document on which he affixed his signature. This though has created some cloud about his evidence, but the fact remains he has admitted and identified his signature. It is under these circumstances Section 71 of the Evidence Act that comes into play, which reads as under:
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"71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence".
30. The language employed under Section 71 of the Act specifically refers to a situation of the attesting witness denying or "not recollecting the execution of the document", which requires proof of execution by other evidence".
31. In the instant case, deposition of PW4 as noted above, falls within the ambit of the second part of Section 71 i.e. "does not recollect the execution of the document". This could be for the reason that the Will has been executed in the year 1984 and the said witness has apparently been examined in the year 2004.
The age of the witness at the time of examination is stated to be 72 years. He not being able to specifically remember the sequence of events that have taken place two decades ago cannot be a reason to discard his entire evidence. There is no denial of the fact that Gulamenabhi- PW4 is the neighbour and the close acquaintance to the deceased testator. This is admitted even by DW.1 and DW.2. Therefore, the deposition of said witness is natural.
32. Since PW4 has merely not able to remember the document, the requirement of examining other witness becomes imperative.
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In this regard evidence of Sri Puttabuddi, the then Sub-
Registrar, who is examined as PW5 become necessary and important. His Examination in chief and cross examination is extracted as under;
Examination in chief "I was working as 1st grade Sub-Registrar in the office of Sub-registrar at Chikmagalur from the year 1981 to 1985.
2. I see Ex. P1 now shown to me. It bears my signature at Ex P1(d). Ex. P 1 has been executed by one late. G.B. Pinto of Chikmagalur. Ex. P1 has been registered in our office. At the time it was presented for registration the executant of Ex. P1 admitted the execution of the same and affixed his signature and LT.M. in my presence. I see the signature and L. T.M. of the executant found on Ex. P1 now shown to me. They are marked as Ex. P 1(e) and (f) respectively. Ex. P1 (e) & (f) are the signature and L.T.M. of the executant. The executant was identified by one of the senior advocate of Chikmagalur by name shri. M.A. Shivaswamy. He has also affixed his signature on Ex.P1 with his address. I see the same it is marked as Ex. P1(g). Ex. P1(g) is the signature of Shri. M.A. Shivaswamy. Ex P1 was registered on the day it was presented before me. I knew and I had seen Shri. M.A. Shivaswamy since I was living as a tenant near his house during my tenure as sub-registrar at Chikmagalur.
CROSS EXAMINATION OF PW5
3. It is not correct to suggest late. G.B. Pinto the executant of Ex. P1 had not appeared before me, he had not presented Ex. P 1, he had not admitted the execution of Ex. P 1 and had not affixed his signature and LT.M. on the same in my presence. The scribe of any will need not appear before me and affix his signature to the will stating that he is the scribe of the same.
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4. The testator of a will presents the will before me for registration after its due execution, duly signed by the necessary parties including the witnesses and the executants and also the scribe.
5. When Ex. P1 was presented before me the contents of Ex. P 1, the signature of executant coupled with the signatures of the witnesses and the scribe had been affixed on the same.
6. When any document is presented before me for registration, the witnesses who have attested the said document need not be present.
7. The recitals in Ex. P 1 disclose that the testator had executed a will earlier on 8.9.1981 and the same has been revoked under the will in dispute i.e., EX.P1.
8. It is not correct to suggest that Ex. P 1 has not been entered in Book No. 3.
9. It is not correct to suggest I had left one of my son in the house of Michael Pinto/Plaintiff No. 1 during my stay at Chikmagalur and on account of the affinity I have in respect of the same I have given the evidence in his favour [Witness volunteers that he was residing with his wife and children as a tenant under one M.N. Shankara shetty]
10. I do not know whether late. Sri. M.A. Shivaswamy, advocate and the wife of the 1st plaintiff were Municipal councillors during my stay at Chikmagalur."
33. Nothing has been elicited to discredit the evidence of this witness. As held by the Apex Court in the case of PENTAKOTA SATYANARAYANA endorsement by the Sub-Registrar that the executant had acknowledged before him, the execution would amount to attestation and that a presumption under Section 114 of the Evidence Act was required to be drawn.
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34. Since the second attesting witness Dr K H Prithveshwara was not available to be examined as witness plaintiff has examined Hussain as PW.1, his chief examination and cross examination is as under;
"Chief examination PW1:
1. I Know Dr. K.H. Prithveshwara Rao. From 1970. I was working as senior Health Inspector. I knew Dr.Prithveshwara Rao since, 1972. He was working as Medical Officer, Municipality, Chikamagalur, Because we were working in the same section, we knew each other. I can identify the signature and hand-writing of Dr. Prithveshwara Rao. I see the signature shown to me. The signature is of Dr.K.H. Prithveshwara Rao (the original Will is now marked as Ex.P.1 and the signature of Dr.Prithveshwara Rao shown to the witness and identified by him is marked as Ex.P1(a). Dr. Prithveshwara Rao used to sigh in the same manner as that of Ex.P.1(a).
Dr.Prithveshwara Rao is now in Russia. He went to Russia in 1997.
Cross Examination Dr. Prithveshwara Rao used to countersign the license recommended by me. Hence, I was acquainted with his signature. I and Dr. Prithveshwara Rao were working together since 1972. .................It is true by merely looking into signature-Ex P.1(a) I cannot say the name of the person who had made it. It is not true that by seeing the name written in bracket under Ex.P1(a) I am deposing that it is the signature of Dr. Prithveshwara Rao".
35. Though learned counsel for defendant No.1 submitted that the said witness PW1 has admitted to he not being able to say the name of the executant by merely looking into the signature to be the reason to discredit his deposition, said submissions
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cannot be accepted as it is quite natural that by looking at a signature normally one cannot make out the name of the person who affixed the signature, as generally signatures are considered to be a "specific mark identification, or sign'', which is normally affixed with a unique style, design or symbol.
Nothing is therefore elicited to discredit the deposition of this witness.
36. Appropriate also to refer to the deposition of Florine Dalmeda who has been examined as PW7 who admittedly took care of the testator. She has fully supported the case of the Plaintiff. Necessary to note that according to Henry Pinto in the earlier Will she was also given a share and nothing was given under the Will ExP1. Yet she has supported the case of the Plaintiff.
37. Deposition of PW.7- Florine Dalmeda -Maid who has spoken about the health condition of the testator, which is as under;
2) Mr. G. B. Pinto was keeping a good and robust health and as for as I am aware he had no ailments of any kind. When occasionally when he had fever or cold he would go to Dr. Prithveshwara Rao of the Municipal Dispensary and I have also gone to the said Dispensary two or three times. ....................
3) I was looked after with so much affection by Mr. G.B. Pinto and his wife. I had been told that in the Will made by him he had made a bequest of a small portion of his
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property to me also. He had also informed me that he had changed the Will as there were changes in the circumstances in the house and also as he had made arrangements for celebrating my marriage which he performed raising a loan from the Canara Bank, Kalasapura. My parents attended the marriage.
4) ................. I have learnt that he died of old age. During the seven years I lived with Mr. and Mrs. Pinto, Mr. Pinto was very active. ..................
38. Another witness examined as PW.3- Sri Charan -
Assistant Administrative Officer of the LIC. His examination-in-chief and cross examination is as under:
"CHIEF EXAMINATION:
1. Since about six months, I am working as Asst.
Administrative Officer in L.I.C. of India, Chikmagalur. As per the summons issued by this court, I have produced some documents in this case. Ex. P.3 is the proposal paper on the life of Dr. K.H. Prithiveshwara Rao. As per this document, it bears the signature of Dr. K.H. Prithiveshwara Rao and I identify it now (Signature of Dr.K.H. Prithiveshwara Rao is marked as Ex. P.3(a)). It is the proposer only signs the proposal papers. I identify the proposal paper in respect of the life of M.S. Raghavendra Prasad which is signed by his father M.A. Shivaswamy (It is now marked as Ex. P.4 and the signature of M.A. Shivaswamy is marked as Ex. P.4(a)). I identify an inland letter dated 13-4-1993 addressed to the Manager, L.I.C. of India, Chikmagalur written by M.A.Shivaswamy. (Inland letter is now marked as Ex.P.5 and signature of Shivaswamy is marked as Ex.P.5(a)).
CROSS EXAMINATION:
2. It is true on the basis of the documents produced and on seeing the signatures, I am telling that those signatures pertain to a particular person and I have not actually seen them signing those documents. .................. I have not seen Dr. Prithiveshwara Rao.
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3. I have not seen M.A. Shivaswamy also. .......... There may be some differences in the signatures at Ex.P.3(a), Ex.D1 and Ex.D2.
4. It is not true that Michael Pinto(Plaintiff No.1) is my friend. I do not know that wife of plaintiff No.1 is an L.I.C. Agent........."
39. As submitted by learned counsel for appellants purpose of examination of this witness can only to the extent of production of documents belonging to Dr.Prithveshwara Rao and M A Shivaswamy the scribe.
40. Also necessary to note the Deposition of DW.1- Ms.Grace Pinto wife of Henry Pinto who in her cross examination has stated as under;
............... My father-in-law died when he was aged about 86 years, It is false to suggest that till his death my father-in-law was healthy, it is true barring the age factor, my father-in-law was not suffering from any ailment (Witness volunteers that her father-in-Jaw was not able to do anything and he was bed-ridden)
8. I talk well in English, Kannada, Tulu, Hindi, Marathi, Gujaratı, Punjabi and many other languages, but I cannot read and write any of the languages. I can identity the signature of my father-in-law. The signatures on Ex.P.1 were shown to the witness to identify the signatures of her father-in-law. She admitted the Ex.P.1(h) was the signature of her father-in-law, but thereafter she took time to identity the other signatures at Ex P.1(j) and (k). She is silent for about 5 minutes.
11. I am in possession of the previous Will of late Put The said Will is not in my possession, but it is in possession of the plaintiffs. My father-in-law at the time
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of his death told me the such a Will is in possession of the 1st plaintiff. I say that the said previous Will must be in possession of the 1st plaintiff.
12. It is false to suggest that due to passing of time an marriage in the family and the marriage of P.W.7, my father law changed the previous Will.
41. Thus DW1 has not only admitted to the signature of the testator but has also admitted to his good health. Regarding the existence of earlier Will though she initially admitted to be in possession of the same has later distanced her from it.
42. Deposition of DW.2- Smt. Winny Flossy D'costa is also relevant who in her cross examination has deposed as under :
19. My grandfather showing us the will and telling that nobody should quarrel. During the life of my grandmother the health of my grandfather was good.........
20. We are not in possession of any document in proof of my grandfather suffering from liver problem, B.P. and diabetes. He was going to Dr. Govindaswamy and Dr. Prithveshwar Rao,.
21. ......... Plaintiff No.1 was working in Kuwait hardly from month.........."
43. Thus from the deposition of aforesaid witness it can be held that the plaintiff -Michael pinto has proved due execution of Will dated 27.09.1984 at Ex.P1.
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Re:Point No.(ii):
44. Only serious suspicious circumstance emphasized by the defendant No.1 is change of terms of disposition from the earlier Will dated 08.09.1981. Though the earlier Will dated 08.09.1981, is specifically referred in subsequent Will dated 27.09.1984-Ex.P1, the same has not been produced. Though the said Will dated 08.09.1981 is not produced, it appears, in terms of the said Will Mr. G.B Pinto had bequeathed the suit property as under:
(i) 25% of the property to the Charles Pinto, (ii) 20% of the property to James Pinto, (iii) 20% of the property to Henry Pinto the respondent, (iv) 15% of the property to respondent No.1 Michael Pinto, (v) 5% of the property to the respondent No.3 Mrs. Cecilia Menezes, (vi) 10% to respondent No.4 Mrs. Greta George and (vii) 5% to maid servant Florine Dalmeda.
A provision was also made in the case of the first son Edwin were to return, he should be given 10% of the property, 5% each from the shares of Charles Pinto and James Pinto.
45. In the present Will at Ex.P1, as noted above, the plaintiff-
Michael pinto has been directed to pay sums of money as under:
₹ 30,000/- payable to Henry Pinto/defendant No.1, ₹ 20,000/- payable to Charles Pinto/defendant No.2 ₹ 20,000/- payable to James Pinto ₹ 10,000/- payable to Cecilia Pinto Menaces, ₹ 20,000/- payable to Greta George, ₹ 10,000/- payable to Edwin Pinto if he was found alive.
46. Necessary to note that the total measurement of the suit property is 5819.86 Sq.Ft., i.e., North to South: 102 3/4 +53 2 3/4 and East - West: 82 + 67 2
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47. Even if the case of Henry Pinto is to be accepted and the suit schedule property is divided into seven shares, as claimed each would get approximately about 831.40 Sq. Ft.
48. Will at Ex.P1 in question has been executed on 27.09.1984.
The approximate value of the property prevalent during the year 1984-85, is what apparently has been taken into consideration by the testator while fixing value of shares allocable to his heirs.
Nothing unusual can be found in this mode of bequest. Perhaps, the testator must have intended the entire property be retained and possessed by one of his sons namely Michael Pinto the plaintiff, who admittedly was working in Kuwait at that relevant point in time. As already noted, except Henry Pinto-the defendant No.1, no other children of Mr.G.B.Pinto has contested the matter. In fact, Charles Pinto has already received a sum of Rs.20,000/- from the plaintiff as per document at Ex.P14.
49. As rightly pointed by learned counsel for appellants, mere fact that a moity share has been bequeathed to the plaintiff could not be considered as a suspicious circumstance (Smt.Sulochana Tai supra).
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50. Further, G.B. Pinto the testator was admittedly alive for about 9 years after execution of Will at Ex.P1. Apex Court in the case of SAVITHRI AND OTHERS V. KARTHYAYANI AMMA AND OTHERS reported in (2007) 11 SCC 621, has held that when the Will is registered and the testator was living for more than 7 years after the execution and did not take any steps to cancel the same, that itself is a factor which the Court may have to take into consideration to uphold the Will.
51. Thus there is sufficient cogent and acceptable material evidence on record produced by the plaintiff in proof of execution of Will at Ex.P1 in the manner required under law.
Disposition of suit schedule property cannot held to be unnatural and unusual. Contents of the Will at Ex.P1 read with reference to time period of its execution, that is, in the year 1984 intention and desire of the testator becomes more clear and probable, free from any suspicious circumstance.
52. Therefore reliance placed on by the learned counsel for the defendant No.1-Henry Pinto on the judgments of the Apex Court in the case of Dhaniram (since deceased) through Lr's and others v. Shiva Sing regarding mere
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registration of Will not being sufficient, and on the Judgment of Co-ordinate Bench of this Court in the case of Giddamma and anr Vs Venkatamma on the point of requirement of examining atleast one attesting witness as well as burden on plaintiff requiring to dispel the suspicious circumstance are of no avail.
53. Tenor of averments made by Henry Pinto in paragraph 5 of his plaint in O.S.No.118/1993 which is filed within 2 months from the date of death of G B Pinto specifically with reference to his health conditions and alleged undue influence exerted by Michael Pinto and his wife even before filing of Petition in P& SC No.1/1994 later O.S.No.2/2000 for grant of Letter of Administration indicate that Henry Pinto was aware of existence of Will at Ex.P1. This fact is pleaded by Michael Pinto in the written statement wherein he has expressed his intention to pay the amounts to all the legal representatives of G.B.Pinto soon after his death.
54. Admittedly Michael Pinto was in Kuwait during the period when the Will at Ex.P1 was executed. Therefore his
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role in revocation of earlier Will and execution of subsequent Will is ruled out.
55. Allegations by Henry Pinto regarding Michael Pinto and his wife taking control of the affairs as well as G.B.Pinto made in the plaint have not been proved.
56. These aspects of the matter have not been taken into consideration by the trial Court. Observation of the trial Court regarding G.B. Pinto directing Michael Pinto to pay money instead of share in the property to Henry Pinto and same being the ground for challenging the Will without reference to the time period of execution of the Will in the considered view of this Court cannot be sustained.
57. The Apex Court in the case of Gnanambal Ammal Vs T.Raju Ayyar and others reported (1950) SCC 978 adverting to construction of the language of the Will and giving effect to the intention, at paragraph 18 and 19 has held as under:
"18. The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document
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which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised.
19. In construing the language of the will as the Privy Council observed in VENKATA NARASIMHA APPA ROW Vs. PARTHASARATHY APPA ROW- 1913 SCC online PC 39 ".....the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, 'his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure 'The court is entitled to put itself into the testator's armchair' ...... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions...... In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life."
58. The facts of the case read in the light of aforesaid proposition, makes it clear that if all the circumstances are taken into consideration holistically ruling out any suspicious circumstance, it would cast duty on the Court to carry out the intention of the testator as expressed in his Will.
59. For the aforesaid reasons and analysis this Court is of considered view that the trial Court is not justified in dismissing
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the suit in O.S.No.2/2000 and decreeing the suit of the defendant in O.S.No.3/2000.
Points answered accordingly.
Accordingly, following:
ORDER
1. RFA No.676/2008 and RFA No.662/2008 are allowed.
2. Common Judgment and decree dated 29.02.2008 passed in O.S.No.2/2000 and O.S.No.3/2000 on the file of the Principal District Judge at Chikmagaluru is set aside.
3. Suit in O.S.No.2/2000 filed by Michael Pinto and his sons, appellants herein is allowed. They are held entitled for grant of letter of administration in respect of suit schedule property with the Will dated 27.09.1984 annexed, to have effect throughout the State of Karnataka.
4. O.S.No.3/2000 filed by Henry Pinto is dismissed.
5. In the circumstances, no order as to cost.
Draw decree accordingly.
SD/-
(M.G.S. KAMAL) JUDGE SBN