Bangalore District Court
Sri. K.S. Shiv Kumar S/O Late K vs Mr. K.S.Chandramouli on 26 March, 2021
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O.S.No.4148/2009
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 26th DAY OF MARCH 2021
OS.NO.4148 / 2009
PLAINTIFF/S 1. SRI. K.S. SHIV KUMAR S/O LATE K.
SHANKARA RAO, AGED ABOUT 63
YEARS, RESIDING IN PREMISES IN
FIRST FLOOR, NO. 51/A, 42ND CROSS
ROAD, 9TH MAIN, RAJAJINAGAR IV
BLOCK, BBMP WARD NO. 22,
BANGALORE - 22.
2. MRS. K.S. ANNAPOORNAMMA D/O
LATE K. SHANKARA RAO, AGED
ABOUT 74 YEARS, RESIDING IN
PREMISES NO. 14, SHANBAG LANE,
DODDANAKKUNDI, BANGALORE - 560
037.
3. K.S.NAGARATHNAMMA D/O LATE K.
SHANKAR RAO, AGED ABOUT 70
YEARS, DEAD BY LR.
3(a). MR.R.RAVI PRAKESH S/O LATE
A.M. RAM RAO, AGED ABOUT 43
YEARS, RESIDING IN PREMISES NO.
262, 6TH MAIN ROAD, SRIVASTA, 12TH
CROSS, MALLESWARAM, VYALIKAVAL
EXTENSION, BANGALORE - 560 003.
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O.S.No.4148/2009
4. MRS. K.S. CHAYAMANI D/O LATE
K. SHANKARA RAO, AGED ABOUT 58
YEARS, RESIDING IN PREMISES NO.
147/A, 5TH MAIN ROAD,
CHAMARAJPET, BANGALORE - 560
018.
5. MRS. K.S. SARASWATHI D/O LATE
K. SHANKARA RAO, AGD ABOUT 55
YEARS, RESIDING IN PREMISES NO.
53/19, 2TH CROSS, 19TH MAIN,
RAJAJINAGAR, BANGALORE - 560 010.
(By B.M.Shyamprasad & Associates, Adv.)
Versus
DEFENDANT/S 1. MR. K.S.CHANDRAMOULI, S/O LATE
K. SHANKARA RAO, AGED ABOUT 51
YEARS, RESIDING IN PREMISES IN
GROUND FLOOR, 51/A, 42ND CROSS
ROAD, 9TH MAIN, RAJAJINAGAR IV
BLOCK, BBMP ARD NO. 22,
BANGALORE.
2. MRS. D.V. NAGARATHNAMMA W/O
SRI. K.S. CHANDRAMOULI, AGED
ABOUT 40 YEARS, RESIDING IN NO.
51/A, GROUND FLOOR, 42ND CROSS,
9TH MAIN, 4TH BLOCK, BANGALORE.
(By M.Sudhakar. Adv.)
Date of Institution of the suit 16.06.2009
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O.S.No.4148/2009
Nature of the suit. Declaration, Partition and
separate possession.
Date of commencement of
recording of evidence. 02.07.2016
Date on which judgment was 26.03.2021
pronounced.
Total Duration. Years Months Days
11 09 10
XXXVII ACCJ, BANGALORE
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O.S.No.4148/2009
JUDGMENT
The Plaintiffs have filed this suit against the defendants for judgment and decree to declare that the registered Will dated 21.05.2008 purportedly executed by late Shankara Rao is null and void and declare that each of the plaintiffs is entitled to 1/6th share in the suit schedule properties and partition the plaintiff 1/6th separate share in the schedule - A property by metes and bounds and for exclusive possession thereof and directing the defendants to render accounts of all the fixed deposits and savings account of the deceased late Shankara Rao including the schedule - B property and to render mesne profits thereon along with costs of the suit.
1. In brief the case of the plaintiffs is as under:
Initially the plaintiffs have filed this suit only against one defendant i.e. Sri.K.S.Chandramouli S/o late K.Shankara Rao.
During the pendency of the suit the plaintiffs got impleaded the wife of defendant by name Mrs. D.V. Nagarathnamma as defenfdant No.2.5
O.S.No.4148/2009
2. In the plaint it is alleged that, the plaintiffs and defendant (defendant No.1 K.S.Chandramouli) are the children of late K.Shankara Rao who breathed his last on December 11 th, 2008. Late Shankara Rao's wife Mrs. Lakshmidevamma pre-deceased him in the year 1978. Late Shankara Rao was the aboslute owner of the suit schedule - A property and that he purchased the said property in the year 1972 under a registered sale deed dated 10.11.1972.
3. Further it is alleged that late Shankara Rao was employed with HAL, Bengaluru. After he attained supreannuation he was practicing "Ayurveda" and he looked after his health without much assistance from any member of the family until January 2008. Thereafter his mental faculties deteriorated and he was suffering from lack of memory and coherence. He died at the age of 99 years on 11.12.2008. Late Shankar Rao, because of his advanced age resided with the defendant (defendant NO.1) in the ground floor premises in the Schedule - A property, whilst the 1 st plaintiff resided in the first floor premises in the schedule - A property. 6
O.S.No.4148/2009
4. Further it is alleged that to the plaintiff's knowledge Shankara Rao died intestate without leaving behind any Will or testament, though he always expressed his desire that his two sons, namely, the 1st plaintiff and defendant together should own Scheudle-A property after his demise. In fact, late Shankara Rao had expressed on number of occasions that the first plaintiff who is residing in the first floor premises should own the firt floor premises in the Schedule-A property and the defendant who is residing in the ground floor should own the ground floor premises and both shall have equal undivided share in the site in the Schedule - A property.
5. Further it is alleged that late Shankara Rao maintained cordinal relationship with all his children (plaintiffs and defendant) and there was no occasion for him to complain of ingratitude or intellorence or of any other undesirable conduct by any of the plaintiffs. Every member of the family rendered all assistance to him even in his last days when his mental faculty had deteroriated and he lacked clear and coherent thinking because of his advanced age. Late Shankara Rao complained of breathlessness and he was 7 O.S.No.4148/2009 shifted to City Hospital, Rajajinagar, Bengaluru at 8-30 p.m. on 10.12.2008 by the first plaintiff and the defendant. He breathed his last on 11.12.2008 at 4-00 a.m. The last rites and obsequies ceremonies were performed by all the children as per customs and practices.
6. Further it is alleged that late Shankar Rao maintained the locker in the ground floor premises and after his demise when the plaintiffs asked the defendant to open the locker, the defendant was rude and he steadfastly refused to open locker. The plaintiffs could not understand the reason for the defendant's obstinate refusal to open the locker, and because of this strange behaviour, the plaintiffs insisted upon him for drawing up of proper documentation for settling the ownership of schedule- A property as desired by late Shankar Rao.
7. Further it is alleged that the plaintiffs were surprised when - after much dithering - the defendant handed over a copy of the registered Will dated 21.05.2008 purportedly executed by late 8 O.S.No.4148/2009 Shankar Rao. The plaintiffs were shocked to read that late Shankar Rao had bequeathed the schedule - A property entirely to the defendant excluding the plaintiffs, more particularly the 1 st plaintiff because of alleged 'ingratitude, intollerence and opposing conduct' towards him. Late Shankar Rao had not mentioned executing or registering any Will, muchless the registered Will dated 21.05.2008, to any of the plaintiffs with whom he maintained cordial relations. When plaintiffs tried to inquire with the defendant about the execution of the purported Will, which was purportedly exeucted a few months prior to his demise, when his mental factulties had deteriorated and it was not possible for him to coherent or clear and the Will was contrary to his long expressed desire, the two sons - i.e. the 1st plaintiff and defendant, should take the schedule - A property as mentioned above - the defendant responded by stating that as an amicable settlement he will not ask the first plaintiff to vacate the first floor premises of the schedule - A property during the 1 st plaintiff's life time and refused to divulge any other details. 9
O.S.No.4148/2009
8. Further it is alelged that there was cordial relations among all the family members and there was no occasion to complain of ingratitude, negligence or intollerence against any members of the family, muchless against the 1 st plaintiff. Further, none of the family members were informed about the execution of the purported Will dated 21.05.2008 until demise of late Shankar Rao and a copy of the same was furnished to the plaintiffs by the defendant after much reluctance. Also, late Shankar Rao's mental faculty had deteriorated and he lacked the ability for clear and coherent thinking when the purported Will was executed in the month of May 2008.
9. Further it is alleged that the execution and registration of the Will dated May 2008 is highly suspicious and emphasizes that the defendant has caused the creation of this Will taking undue advantage of fact that late Shankar Rao was not in sound and good mental faculty to comprehend the consequences of his conduct. As such the defendant does not derive any right, title or interest in the schedule - A property to the exclusion of the plaintiffs and the 10 O.S.No.4148/2009 plaintiffs are entitled for equal 1/6th undivided share in the schedule
- A property.
10. Further it is alleged that late Shankar Rao also held fixed deposits of about Rs.8 lakhs in his name under different account and savings bank account in 1950 with Rajajinagar Co-operative Bank Limited. The defendant has surreptitiously contrived to withdraw even these amounts without the knowledge or intimation to the planitiffs despite the fact that late Shankar Rao was incoherent and incapable of taking clear decisions during these days immediately preceding his demise.
11. Further it is alleged that firstly, the defendant withdrew a sum of Rs.50,000/- in the month of October 2008 and next different fixed deposits amounting to sum of Rs.3,54,000/- were prematurely closed and credited to late Shankar Rao's aforesaid mentioned savings account between 16.11.2008 and 26.11.2008 and withdrawn by the defendant on 26.11.2008. The F.D. for another sum of Rs. 3 lakhs was also closed prematurely and credited to the 11 O.S.No.4148/2009 savings account in number 1950 on 27.11.2008 and withdrawn as by cash on the same day. Another sum of Rs.66,994/- from out of the fixed deposits held by late Shankar Rao was also credited to his aforesaid mentioned savings account on 06.12.2008 and the defendant has withdrawn this amount as cash on the same day.
12. Further it is alleged that the plaintiffs being keen to act according to the stated desire of late Shankar Rao and being desirous of an amicable settlement, have offered without prejudice to their right in the schedule properties, to execute and register deed settling the schedule - A property to the first plaintiff and the defendant as desired by late Shankar Rao. In fact, the plaintiffs have caused legal notice dated 04.04.2009 in this regard setting forth the aforementioned facts. However, the defendant has refused amicable settlement and caused reply notice dated 18.05.2009 calling upon the first plaintiff to vacate the first floor premises in the schedule - A property.
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O.S.No.4148/2009
13. According to the planitiffs, the cause of action for the suit arose on the date of demise of late Shankar Rao on 11.12.2008 and when the defendant first disclosed the Will dated 21.05.2008 and on all subsequent dates when the defendant requested partition and threatened to forcibly eject the 1st defendant (wrongly mentioned as 1st defendant instead of 1st plaintiff) from the schedule - A property.
Mainly among these grounds it is prayed to decree the suit as prayed for.
14. After the service of suit summons, both the defendants entered appearance through their counsel and filed their written statement separately.
15. In the written statement, the defendant No.1 has admitted the plaint averments that he and plaintiffs are the children of K. Shankar Rao, who breathed his last on 11.12.2008, Late K.Shankar Rao's wife Smt. Lakshmidevamma pre-deceased him in the year 1978. Late Shankar Rao is the absolute owner of the suit schedule - A property which comprises of ground floor and first floor and that 13 O.S.No.4148/2009 late Shankar Rao purchased the schedule - A property in the year 1972 under a registered sale deed dated 10.11.1972. The defendant No.1 has also admitted the plaint averments that late K. Shankar Rao was employed with HAL, Bengaluru and he attained superannuation and thereafter he was practicing 'Ayurveda'.
Except admitting the above averments of the plaint, the defendant No.1 has denied the rest of the averments of the plaint as false and untenable and called upon the plaintiffs for strict proof of the same.
16. The main defence of the defendant No.1 is that a registered Will dated 21.05.2008 is perfectly valid in the eye of law and it was clear intention of late Shankar Rao that Schedule - A property shall devolve upon this defendant and no illegality is committed by him as alleged for execution of Will by late Shankar Rao. He looked after his father late Shankar Rao during his life time and he resided always with him for several decades. In view of the difference between K. Shankar Rao with the 1 st plaintiff that the 1st plaintiff resided separately in some other area during the year 1982 to 1990 and the fisrt floor of the premises was mortgaged to Sri. 14 O.S.No.4148/2009 A.S.Narayana Murthy for occupation. Subsequently, at the intervention of the well wishers, K.Shankar Rao has permitted the 1 st plaintiff to reside in the first floor with his family members separately without any intimated relationship. At no point of time, the plaintiffs were looked after well being of the late S.Shankar Rao, it was always by this defendant who looked after the well being of the late Shankar Rao during his life time and even after his death, he has perfomred all the ceremonies by spending more than Rs.2 lakhs which are all within the knowledge of the plaintiffs. In order to claim illegal share in the property the plaintiffs have filed this suit. Late Shankar Rao had written Will out of his free own will and he was hale and heatlhy and he was not suffering from any disease at the time of executing Will. He was having sound state of mind and he was practicing Doctor in Ayurveda after his retirement from service and educated. Subsequently, K.Shankar Rao registered by getting typed Will in the presence of witnesses according to his wish and no one has influenced him to execute the Will which is executed by him out of love and affection and the services rendered by this defendant and his wife (defendant No.2) bequeathing his property in favour of 15 O.S.No.4148/2009 defendant No.1. There is no suspicious circumstances in executing the Will as alleged by the plaintiffs.
17. Further it is contended that late K. Shankar Rao out of wedlock had two sons and four daughters. The marriages of daughters and sons performed by late K. Shankar Rao during his life time. All the daughters were well settled and all well beings were taken care by late Shankar Rao during his life time. The 1 st plaintiff always had quarrel with his father late Shankar Rao and the 1 st plaintiff never had any good relationship with K. Shankar Rao till his death. In view of differences, the first plaintiff resided separately from the family of K. Shankar Rao. The 1 st plaintiff is employed in the Government Organization and he was substantially earned and his children were also earning members and well settled in their life and have acquired properties both immovable and movables. In view of the above taking into consideration of all the aspects, late K. Shankar Rao has firmly decided to give the schedule property to the defendant No.1 out of love and affection and for the service rendered 16 O.S.No.4148/2009 by him to his father late Shankar Rao. These facts are well within the knowledge of plaintiffs and they have filed the suit for illegal gain.
18. Further it is contended that the court fee paid is insufficient and value of the property is not properly valued.
Mainly among these grounds, it is prayed to dismiss the suit with exemplary costs.
19. In the written statement, the defendant No.2 has admitted the plaint averments that she is the daugher in-law of late K. Shankar Rao, who breathed his last on 11.12.2008, late K.Shankar Rao's wife Smt. Lakshmidevamma predeceased him in the year 1978, that late Shankar Rao is the absolute owner of the suit schedule - A property which comprises of ground floor and first floor and that late Shankar Rao purchased the schedule - A property in the year 1972 under a registered sale deed dated 10.11.1972. The defendant No.2 has also admitted the plaint averments that late K. Shankar Rao was employed with HAL, Bengaluru and he attained superannuation and thereafter he was practicing 'Ayurveda'.
17
O.S.No.4148/2009 Except admitting the above averments of the plaint, the defendant No.2 has denied the rest of the averments of the plaint as false and untenable and called upon the plaintiffs for strict proof of the same.
20. The main defence of the defendant No.2 is that a registered Will dated 21.05.2008 is perfectly valid in the eye of law and it was clear intention of late Shankar Rao that Schedule - A property shall devolve upon these defendants and no illegality is committed, by them as alleged for execution of Will by late Shankar Rao. She and defendant No.1 have looked after late Shankar Rao during his life time and he resided always with them for several decades. In view of the difference between K. Shankar Rao with the 1st plaintiff that the 1st plaintiff resided separately in some other area during the year 1982 to 1990 and the first floor of the premises was mortgaged to Sri. A.S.Narayana Murthy for occupation. Subsequently, at the intervention of the well wishers, K.Shankar Rao has permitted the 1st plaintiff to reside in the first floor with his family members separately without any intimated relationship. At no point 18 O.S.No.4148/2009 of time, the plaintiffs were looked after well being of the late S.Shankar Rao, it was always they who looked after the well being of the late Shankar Rao during his life time and even after his death, they have performed all the ceremonies by spending more than Rs.2 lakhs which are all within the knowledge of the plaintiffs. In order to claim illegal share in the property the plaintiffs have filed this suit. Late Shankar Rao had written Will out of his free own will and he was hale and healthy and he was not suffering from any disease at the time of executing Will. He was having sound state of mind and he wa practicing Doctor in Ayurveda after his retirement from service and educated. Subsequently, K.Shankar Rao registered by getting typed Will in the presence of witnesses according to his wish and no one has influenced him to execute the Will which is executed by him out of love and affection and the services rendered by them bequeathing his property in favour of defendants. There is no suspicious circumstances in executing the Will as alleged by the plaintiffs.
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21. Further it is contended that late K. Shankar Rao out of wedlock had two sons and four daughters. The marriages of daughters and sons performed by late K. Shankar Rao during his life time. All the daughters were well settled and all well beings were taken care by late Shankar Rao during his life time. The 1 st plaintiff always had quarrel with his father late Shankar Rao and the 1 st plaintiff never had any good relationship with K. Shankar Rao till his death. In view of differences, the first plaintiff resided separately from the family of K. Shankar Rao. The 1 st plaintiff is employed in the Government Organization and he was substantially earned and his children were also earning members and well settled in their life and have acquired properties both immovable and movables. In view of the above taking into consideration of all the aspects, late K. Shankar Rao has firmly decided to give the schedule property to the defendants out of love and affection and for the services rendered by them to late Shankar Rao. These facts are well within the knowledge of plaintiffs and they have filed the suit for illegal gain. 20
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22. Further it is contended that the court fee paid is insufficient and value of the property is not properly valued.
Mainly among these grounds, it is prayed to dismiss the suit with exemplary costs.
23. On the basis of the above pleadings of the parties, the then presiding officer of this court has framed the following:
ISSUES
1. Does the plaintiffs prove that their father late Shankara Rao has not executed any Will deed on 21.05.2008 in connection with the plaint schedule property as contended in the plaint?
(Issue No.1 is deleted as per court order dated 25.02.2021 and in its place issue No.1 is recasted as mentioned below) Recasted issue No.1 dated 25.02.2021:
1. Whether the defendant No.1 prove that his deceased father K.Shankar Rao had executed a registered Will dated 21.05.2008 in his favour in respect of 'A' schedule property?
2. Does the plaintiffs prove that they are entitled for the 1/6th share in the plaint schedule property?21
O.S.No.4148/2009
3. Does the plaintiffs prove that they are entitled for their share in the fixed deposit and saving account of his father G. Shankar Rao with mesne profits as stated in the plaint?
4. Does the plaintiffs prove that, suit is properly valued and court fee paid on the same is sufficient?
5. What order or decree?
24. At the time of evidence, the 1st plaintiff Sri. K.S.Shivakumar examined himself as PW 1. The son of 3 rd plaintiff (plaintiff No.3 (a) by name Sri.R.Raviprakash) examined himself as PW 2. The 5 th plaintiff Smt.K.Saraswati examined herself as PW 3. It is seen from the records that PW2 has filed his in-chief evidence affidavit before the court on 13.03.2020. But thereafter he did not turned up before the court and not available for cross examination. The learned counsel for the plaintiffs submits that PW 2 is unable to come to the court and it is prayed to discard his evidence. Therefore, in view of the same the evidence of PW 2 is discarded. On behalf of plaintiffs side 10 documents were marked as Ex.P1 to P10 and closed their side evidence. On the other hand, the defendant No.1 Sri. K.S.Chandramouli examined himself as DW 1. On behalf of defendant's side two witnesses namely, Sri. Thimmaraya Swamy 22 O.S.No.4148/2009 and Sri. C.G.Lakshmipathi were examined as DW 2 and 3. On behalf of defendants side 4 documents were marked as Ex.D1 to D4 and closed their side evidence. Then the case posted for arguments.
25. Heard the arguments.
26. My findings on the above issues are as under:
Re-casted Issue No.1 dt. 25.02.2021: In the Affirmative Issue No.2 : In the Negative Issue No.3 : in the Negative Issue No.4 : In the Affirmative Issue No.5 : As per final order for the following:
REASONS
27. RE-CASTED ISSUE No.1 DATED 25.02.2021: The plaintiffs have filed this suit against the defendants for judgment and decree as under:
"1. Declaring registered Will dated 21.05.2008 registered in No. RJN-3-00066/2008-09 stored in CD No. RJND - 123 with the Sub-Registrar, Rajajinagar, Bangalore purportedly executed by Late Shankar Rao is null and void and declare that each of the plaintiff is entitled to 1/6th share in the suit schedule properties and partition plaintiffs' separate 1/6th share in the schedule - A property by metes and bounds and for separate and exclusive possession thereof.
2. Directing the defendants to render accounts of all the fixed deposits and savings account of the deceased Late 23 O.S.No.4148/2009 Shankar Rao, including the schedule B property and to render mesne profits thereon.
3. To pass such other or further order/s as deemed fit to be granted in the facts and circumstances of the case and for costs."
28. If we peruse the pleadings of the parties and also the oral and documentary evidence of both the parties, it is seen that the following facts are admitted facts between the parties. Plaintiff No.1 K.S.Shivakumar and defendant No.1 K.S. Chandramouli are the sons of late K.Shankar Rao. The plaintiff No.2 Smt. K.S.Annapoornamma, plaintiff No.3 Smt. K.S.Nagaratnamma (after filing of the suit she died and her LR was brought on record), plaintiff No.4 Smt.K.S.Chayamani and plaintiff No.5 Smt. K.S. Saraswathi are the daughters of late K. Shankar Rao. The defendant No.2 Smt. D.V. Nagaratnamma is the wife of defendant No.1 Chandramouli. The plaintiff No.1 is the elder brother of defendant No.1.
It is an admitted fact that the suit schedule -A property was purchased by late Shankar Rao under a registered sale deed dated 10.11.1972 and that after his demise the original sale deed now is in the custody of defendant No.1. The suit schedule - A property is the 24 O.S.No.4148/2009 self acquired property of deceased K. Shankar Rao. Late Shankar Rao was employed with HAL, Bengaluru. After he attained superannuation he was practicing 'Ayurveda' in the ground floor of the suit schedule - A property. The said Shankar Rao was died at the age of 99 years on 11.12.2008. His wife Smt. Lakshmidevamma predeceased him in the year 1978. Late Shankar Rao maintained a locker in the ground floor premises. The marriages of daughters and sons were performed by late K. Shankar Rao during his life time.
The above facts are the admitted facts and there is no much controversy between the parties with regard to the same.
29. The main case of the plaintiffs is that after the demise of their father K.Shankar Rao, they asked the defendant No.1 to open the locker belong to their father and that the defendant No.1 refused to open the locker. The defendant No.1 handed over a copy of registered Will dated 21.05.2008 purportedly executed by late K.Shankar Rao. They were shocked to read that the late Shankar Rao had bequeathed schedule - A property entirely to the defendant No.1 excluding the plaintiffs. According to the plaintiffs prior to the 25 O.S.No.4148/2009 death of their father, his mental faculties had deteriorated and it was not possible for him to be coherent or clear and the Will was contrary to his long expressed desire the two sons - i.e. the 1 st plainiff and the defendant No.1, should take the schedule property i.e. the 1 st plaintiff should own first floor premises and the defendant No.1 should own the ground floor premises and both shall have undivided share in the site in the A-schedule property. Further, according to the plaintiffs, the execution and registration of Will dated 21.05.2008 is highly suspicious and that taking advantage of the fact that the late Shankar Rao in the last days of his life was not in sound and good mental faculty has created this Will and as such the defendant No.1 does not derive any right title or interest in the schedule - A property to the exclusion fo the plaintiffs and the plaintiffs are entitled for equal 1/6th undivided share in the schedule - A property. This shows that the plaintiffs have denied the execution of the alleged registered Will dated 21.05.2008 purported to be executed by late Shankar Rao in favour of defendants pertaining to A- schedule property. 26
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30. Per contra, the main defence of the defendants is that they looked after late Shankar Rao during his life time and he resided always with them for several decades. In view of difference between Shankar Rao with the 1 st plaintiff, the 1st plaintiff resided separately in some other area during the year 1982 to 1990 and the first floor of the premises was mortgaged to Sri.A.S.Narayana Murthy for occupation,. Subsequently at the intervention of well wishers Shankar Rao has permitted the 1 st plaintiff to reside in the first floor with his family members separately without any intimated relationship. According to the defendants, the registered Will dated 21.05.2008 is perfectly valid in the eye of law and it was clear intention of late K. Shankar Rao that the schedule - A property shall devolve upon the defendants and no illegality is committed by the defendants as alleged for execution of Will by late K. Shankar Rao. Late Shankar Rao had written Will out of his free will and he was hale and healthy and he was not suffering from any decease at the time of executing the Will. The above contention of the defendants shows that the defendants set up the title over the suit schedule -A property 27 O.S.No.4148/2009 on the strength of a registered Will dated 21.05.2008 alleged to have executed by late Shankar Rao in their favour.
31. As the defendants have contended that the deceased K.Shankar Rao had executed a registered Will dated 21.05.2008 in their favour pertaining to the suit property and that as they are the beneficiaries of the alleged Will, the burden is on the profounder to prove that the said Will has been validly executed and is genuine. The profounder is also required to prove that the testator has signed the Will and he / she has put his / her signature out of his own free will and volition and was having a sound disposition of mind at that point of time and had understood the nature and effect thereof. If sufficient evidence is brought by the profounder in this regard, the onus cast on the profounder can be held to have been discharged. In case of proof of will, a signature of the testator alone would not prove the execution thereof. If a defence of fraud, coercion or undue influence raised, the burden always would be on such person who raised such plea, in view of the judgment of the Hon'ble Supreme Court in the case of SRIDEVI AND OTHERS VS. JAYARAJA 28 O.S.No.4148/2009 SHETTY AND OTHERS reported in (2005) 2 SCC 784. Therefore, the initial onus of proof lies on the profounder to prove that the alleged Will dated 21.05.2008 has been validly executed and is genuine.
32. During the course of arguments, the learned counsel for the plaintiffs would submits that the alleged registered Will dated 21.05.2008 purported to be executed by late K. Shankar Rao is a concocted document and that late Shankar Rao has not at all executed the said Will out of his own free will and volition and that during that time his mental faculty was deteriorated. Further it is argued that there are suspicious circumstances surrounding the execution of the said Will and that the defendants have failed to remove such suspicious circumstances by placing material evidence and therefore, the defendants have failed to prove the execution and attestation of the said Will as required under law and hence, the plaintiffs are entitle for their separate 1/6th share in the A-schedule property by metes and bounds.
29
O.S.No.4148/2009 At the time of arguments, the learned counsel for the plainiffs has relied upon the following decisions.
1. AIR 1959 SC 443 - H. VENKATACHALA IYENGAR VS. B.N. THIMMAJAMMA AND OTHERS.
2. 2008 SCC ONLINE KAR 188: ILR 2008 KARNATAKA 2115 - SRI. J.T. SURAPPA AND ANOTHER VS.
SRI.SATCHIDHANANDENDRA SARASWATHI SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS.
3. 2020 SCC ONLINE SC 464 - KAVITA KANWAR VS.
PAMELA MEHTA AND OTHERS.
33. On the other hand, during the course of arguments the learned counsel for the defendants would submits that at no point of time the plaintiffs were looked after well being of late K. Shankar Rao and that it was always the defendants who looked after the well being of late Shankar Rao during his life time and that out of free will and volition the deceased K. Shankar Rao during his life time had executed a registered Will dated 21.05.2008 in favour of defendants pertaining to the suit schedule - A property and that the said registered Will is perfectly valid in the eye of law. Further it is argued that at the time of executing the said Will no one has influenced late Shankar Rao to execute the Will and that due to the service rendered 30 O.S.No.4148/2009 by the defendants he bequeathed the suit schedule - A property in favour of defendants out of his love and affection towards them. There are no suspicious circumstances surrounding the execution of the said Will. In view of the aforesaid submission it is prayed to dismiss the suit.
At the time of arguments, the learned counsel for the defendants has relied upon the following decisions.
1. AIR 2005 SC 52 - MEENAKSHI AMMAL (DECEASED BY LRs) AND OTHERS VS.
CHANDRASEKARAN AND ANOTHER.
2. AIR 2005 SC 233 - DAULAT RAM AND OTHERS VS. SODHA AND OTHERS.
3. 2006 AIR SCW 2404 (SUPREME COURT) -
GURDEV KAUR AND OTHERS VS. KAKI AND OTHERS.
4. 2015 (3) KCCR 2746 (KARNATAKA HIGH COURT) - JANA BAI AND OTHERS VS. SRI.
KOMALAN SINCE DECEASED BY LRs AND OTHERS.
5. 2017 (4) KCCR 3428 (KARNATAKA HIGH COURT - KALABURAGI BENCH) -
VEERABHADRAYYA AND ANOTHER VS. MYTRA BAI.
34. In the above cited H.VENKARACHALA IYENGAR VS. B.N. THIMMAJAMMA AND OTHERS case the Hon'ble Supreme court 31 O.S.No.4148/2009 has held that the party propounding the Will or otherwise making a claim under a Will is required to prove the execution of said Will and under Section 67 of the Evidence Act, signature of said person must be proved to be in his handwriting and for proving such a handwriting under Sections 45 and 47 of the Evidence Act, the opinions of experts and person acquainted with the hand writing of the person concerned are made relevant and in conclusion it has been held, test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. It has been further held that unlike other documents, the Will speaks from the death of the testator and so, the testator who had already departed the world cannot say whether it is his/her Will or not and as such this aspect introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator and held that the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator and the testator at relevant time was in sound and disposed state of mind and he/she had understood the nature of such disposition and affix his/her signature or thumb mark to the document out of his / her free will. It has been held that when the evidence adduced in support of the Will is by 32 O.S.No.4148/2009 disinterested persons and is satisfactory and sufficient to prove the sound and disposing state of testator/testatrix mind and his/her signature as required by law, courts would be justified in making a finding in favour of the propounder. However, the word of caution sounded by the Apex Court in the said judgment is, where the Will if surrounded by suspicious circumstances like the signature of the testator/testatrix may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator/ testatrix may not remove the doubt created by the appearance of the signature, the condition of the testator/testatrix mind may appear to be very feeble and debilitated, where mental capacity to dispose of the property is doubtful, distribution is unfair or the document itself indicating that said disposition may not be the result of the testator's/ testatrix's free will and volition and in such cases Court would definitely call upon the propounder to remove all such suspicious circumstances surrounding it. It has been held that there is no hard and fast or inflexible rule which can be laid down over the appreciation of the evidence.
33
O.S.No.4148/2009
35. In the above cited SRI.J.T. SOORAPPA AND ANOTHER's case in para No.24 of the judgment, our Hon'ble High Court has stated five steps in which the court has to tread a careful path in the enquiry to be conducted with regard to Will, as under:
"24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "PANCHAPADI". The path of enquiry and steps to be traversed are as under:
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
(2) Whether the natural heirs have been disinherited? If so, what is the reason?
(3) Whether the testator as in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?
36. In the above cited MEENAKSHIAMMAL (DECEASED BY LRs) AND OTHERS'S case, with regard to proof of Will, in para 34 O.S.No.4148/2009 No.16 of the judgment the Hon'ble Supreme Court has stated as under:
"16. We do not find any merit in this civil appeal. 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 proof of 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 it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case, the Court would normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator."
37. In the above cited DAULAT RAM AND OTHERS'S case, with regard to requirement of proof of a Will, in para No.10 of the judgment the Hon'ble Supreme Court has stated as under:
"10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for 35 O.S.No.4148/2009 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so."
38. In the above cited SMT.JANA BAI's case, the factors to be considered in proof of Will, in para No.5 of the judgment, our Hon'ble High Court has stated as under.
"5. ................It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the 36 O.S.No.4148/2009 onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
"
39. In the above cited VEERABHADRAYYA AND ANOTHER's case, with regard to the requirement for proof of Will, in para No.36 of the judgment, our Hon'ble High Court has stated as under.
"36. As already noticed here-in-above section 63(c) of Indian Succession Act would mandate for due execution of a Will-the testator has to sign or affix his mark to the Will; the signature or mark of the testator should indicate or appear that it was intended to give effect to the writing as a Will; has to be attested by two or more witnesses; and each of whom has seen the testator/testatrix signing or affixing his/her mark to the Will and in order to prove the execution of the Will is absolutely necessary that the testator must have signed the Will in the presence of the attestors or the testatrix must have personally acknowledged his signature in the presence of attestors. In proving the genuineness of the Will, it is required to be proved that two attesting witnesses have seen the testator sign or affix his mark and they have signed or affixed their 37 O.S.No.4148/2009 mark in the presence of the testator. No form is prescribed for attestation. It is not necessary that two attestors should be simultaneously present at the time of putting their signature or mark, but the requirement or rigour of clause (c) of Section 63 mandates that each of the attesting witnesses must have seen the testator sign or affix his/her mark to the Will or has received from the testator a personal acknowledgement of his/her signature or mark on the Will. The additional requirement is that each of the attesting witnesses shall also sign in the presence of the testator."
40. A perusal of the above cited decisions shows that, the principles which govern the proof of a Will are well settled. The mode of proving the Will does not ordinarily differ from that of proving any other documents except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder of the Will 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 of the Will to explain them to the satisfaction of the Court before it accepts the Will as 38 O.S.No.4148/2009 genuine. Where ever, the caveator alleges undue influence frud 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 of the Will to satisfy the conscience of the court. The suspicious circumstances may be as to be genuineness of the signature of the testator, the condition of the testator's mind, the depositions made on the Will being unnatural, improbable or unfair in the light of the relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the courts 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 succeeds in removing the suspicious circumstances the court would have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in part near relations.
41. In the premise of the above cited decisions regarding governing proof of Wills and the nature of the evidence to prove 39 O.S.No.4148/2009 Wills, let us have a look at the evidence adduced by the parties in this case.
42. In this case, the propounder of the Will i.e. the present defendants who are also beneficiaries of the Will have contended that the deceased K.Shankar Rao during his life time has executed Ex.D3 registered Will dated 21.05.2008 in their favour pertaining to the suit schedule - A property. But the plaintiffs have contended in the plaint that the defendant has created the said Will taking undue advantage of the fact that late Shankar Rao in the last days of his life was not in sound and good mental faculty to comprehend the consequences of his conduct.
43. As Ex.D3 registered Will dated 21.05.2008 is required to be attested, as provided in Section 68 of the Indian Evidence Act, it cannot be used as evidence until one of the attesting witnesses atleast 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. In addition, it has to satisfy the 40 O.S.No.4148/2009 requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time, he was sound and disposing state of mind and understood the nature and effect of disposition and the testator had signed it in the presence of two witnesses who attested in his presence and in the presence of each other. Once these elements are established the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or by playing a fraud is on the person who alleges it to be so.
44. During the course of arguments, the learned counsel for the plaintiffs has submitted that there are suspicious circumstances, surrounding the execution of the alleged Will and the same has to be 41 O.S.No.4148/2009 proved by the propounder. According to the learned counsel for the plaintiffs the following are the suspicious circumstances surrounding the execution of the alleged will (Ex.D3).
45. The first suspicious circumstances according to the learned counsel for the plaintiffs is that the deceased K. Shankar Rao at the time of execution of the alleged Will was about 99 years i.e. he was very old and at that time he was physically and mentally not sound and that he was not in a position to judge his own acts and its consequences and that he was not in a disposal state of mind. In view of the above contention, the learned counsel for the plaintiffs submits that as the deceased Shankar Rao had no testamentary capacity to execute the alleged Will during the year 2008, the above circumstances is the suspicious circumstnaces surrounding the execution of the Will.
46. As against this the learned counsel for the defendants has submitted that even though the deceased K. Shankar Rao was aged about 99 years as on the date of execution of the said Will, but 42 O.S.No.4148/2009 he was not suffering from any disease and that he had sound disposing state of mind and that with his own free will and volition he had executed Ex.D3 Will.
47. Therefore, in view of the above contention of the parties, now the court has to find out whether the deceased K. Shankar Rao had sound disposing state of mind at the time of executing the alleged Will or not.
It is not much in dispute that during the year 2008 i.e. as on the date of execution of the alleged Ex.D3 Will the deceased K. Shankar Rao was aged about 99 years. The same has been come in the evidence of both the parties.
So far as with respect to the mental faculties of deceased Shankar Rao during that time, both in the plaint and also in the oral evidence it is the contention of the plaintiffs that at the time of execution of the alleged Will late Shankar Rao was not in sound and good mental faculty to comprehend the consequences of his conduct. In the in-chief evidence the 1 st plaintiff Sri.K.Shivakumar also reiterated the same. In the cross examination at page No.16 the 43 O.S.No.4148/2009 learned counsel for defendants has put a question that at the time of death your father was not suffering from any disease. To the said question PW 1 has answered that my father had age old disease and he was having feeble mind. Further, in the cross examination PW 1 has admitted that in order to show that during that time his father was suffering from age old disease and having feeble mind, he has not produced documents before the court.
At the same time, if we peruse the in-chief evidence of plaintiff No.5 (PW3) Smt.K.Saraswathi who is none other than one of the daughters of deceased Shankar Rao, she stated in her affidavit that the defendants have caused creation of this Will taking advantage of the fact that late Shankar Rao in the last days of his life resided with them and he was not in sound and mental faculty to comprehend his conduct. But in the cross examination at page No.2 this witness has admitted that my father was practicing as Ayurvedic doctor till his death. Further she has deposed that till he has mental faculty he was practicing as Ayurvedic doctor till 2006-07, but thereafter his mental capacity is not of sound mind and he became senile. When the learned counsel for the defendants asked PW 3 that whether 44 O.S.No.4148/2009 they have produced documents to show that her father had no sound mental capacity in the year 2006-07, to this question PW 3 has stated that they have not produced documents to that effect. In the cross examination in page No.3 PW 3 has admitted that, at the time of death my father was not suffering from any disease. Thereafter she voluntarily deposed that but he has got some mental unsoundness.
48. The above evidence of PW 1 and 3 as stated in their cross examination and also in their in-chief evidence shows that according to them, as on the date of execution of Ex.D3 Will their father K.Shankar Rao was not of sound mind and become feeble or senile.
Even though PW 1 and 3 have stated the above evidence regarding the alleged mental capacity of their father during that time, but in order to show that during that time their father Shankar Rao was not of sound mind and he become feeble or senile, the plaintiffs have not produced any iota of evidence either oral or documentary, apart from their oral evidence to show that at that point of time the deceased Shankar Rao was not of sound mind and he become 45 O.S.No.4148/2009 feeble and senile and therefore, he is not in a position to judge his own conduct.
The above evidence of PW 1 and 3 also shows that even though the deceased Shankar Rao during his last days i.e. at the time of execution of the alleged Will was aged 99 years, but he was not suffering from any disease. If at all the deceased K.Shankar Rao was suffering from any disease during that time the plaintiffs would have produced any medical records to show that due to the disease which he had at that time late K.Shankar Rao has become feeble and unsound mind.
On the other hand, if we peruse the oral evidence of DW 2 the scribe of Ex.D3 Will, he stated in his in-chief evidence that at that time the said Shankar Rao was aged 99 years, still he was quiet alright both physically and mentally. In the cross examination DW 2 has denied the suggestion that the said Shankar Rao was not in a position to read and write and capable of understanding the same at that time. DW 3 is said to be one of the attesting witnesses to Ex.D3 Will. He stated in his in-chief evidence that the deceased Shankar was hale and healthy and he was in sound state of mind and was 46 O.S.No.4148/2009 able to write and read the document. In the cross examination this witness denied the suggestion that at the time of registration of the alleged Will the deceased Shankar Rao was not in a position to write and capable of understanding the document. In the cross examination DW 3 has stated that the said Shankar Rao was talking loudly and he used to read the document and therefore, he has stated that he was hale and health at that time.
If we analyze the over all evidence of PW 1 & 3 and DW 2 & 3 in a proper perspective, it is seen that even though the plaintiffs have contended and stated in their evidence that at the time of execution of the alleged Will their father Shankar was not in sound disposing state of mind and has become feeble, but DW 2 and 3 have stated that at the time the deceased Shankar Rao was hale and healthy and he used to read and write and capable of understanding the same. As already stated, in order to show that during that time the deceased K. Shankar Rao was unsound mind and he is not in a position to read and write and also not in a position to understand the contents of the document, the plaintiffs have not produced any 47 O.S.No.4148/2009 positive and satisfactory evidence before the court, except their oral testimony.
49. At this juncture, I have referred the decision of Hon'ble Supreme court reported in ILR 2004 KAR 440 (SUPREME COURT)
- RAMABAI PADMAKAR PATIL (DEAD) THROUGH LRs AND OTHERS VS. RUKMINI BAI VISHNU VEKHANDE AND OTHERS.
While discussing the facts of the above referred case in para No.9 of the judgment, in the middle portion, the Hon'ble supreme court has stated that '........The fact that Smt.Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing '. In the above decision, the Hon'ble Supreme Court has stated that, mere facts that the testator was very old, was hard of hearing and was unable to walk would not throw any doubt on genuineness of the Will.
The principle enunciated in the above decision is aptly applicable to the present case, because, in the cross examination at page No.16, the 1st plaintiff - PW 1 has stated that my father had age 48 O.S.No.4148/2009 old disease and he is having unsound mind. But he has admitted that in order to show the same he has not produced document before the court. PW3 who is none other than one of the daughters of alleged testator has admitted in her cross examination at page No.2 that my father was practicing as Ayurvedic doctor till his death. Thereafter, in the cross examination she has voluntarily stated that my father was practicing as Ayurvedic doctor till he had mental soundness upto the year 2006-07. Thereafter he had lost mental soundness. But in the cross examination she has admitted that in order to show the same they have not produced document before the court. On the contrary the defendant No.1 i.e. DW 1, the alleged scribe of Ex.D3 Will i.e. DW 2 Sri. Thimmaraya Swamy, Advocate, Bengaluru and DW 3 Sri.C.G.Lakshmipathi alleged to be one of the attesting witness to Ex.D3 Will have stated in their in-chief evidence and also in the cross examination that at the time of executing Ex.D3 Will the deceased Shankar Rao was in sound mind and capable of understanding the writing and also he is able to write and read the document. Even though the learned counsel for the plaintiffs has cross examined DW 1 to 3, but there is no worth has been elicited 49 O.S.No.4148/2009 from their evidence to impeach their veracity with respect to the above points are concerned.
Therefore, on considering the overall evidence of both the parties, and in view of the ratio laid down in the above referred decision it is stated that the contention as raised by the learned counsel for the plaintiffs regarding suspicious circumstances surrounding the execution of the Will is not a legitimate suspicion.
50. The second suspicious circumstances as stated by the learned counsel for the plaintiffs is that the deceased K.Shankar Rao had two sons and four daughters and that if really he had an intention to execute a Will during his life time, naturally he used to execute such Will in favour of all his children including his daughters, but not to any one of the sons as in the present case (defendant No.1 and his wife) and that the deceased disinherited the natural heirs i.e. plaintiffs, and therefore, this is one of the suspicious circumstances surrounding the execution of the said Will.
As against this, the learned counsel for the defendants has argued that the plaintiffs have not at all taken care of the deceased 50 O.S.No.4148/2009 K.Shankar Rao during his life time and they have not rendered any service to him during his old age and that the deceased K.Shankar Rao lived only with the defendants and they alone rendered services to him during his life time till his death and that out of love and affection and the services rendered by them the deceased had bequeathed A-schedule property in favour of defendants and therefore, it cannot be said that the deceased disinherited the natural heirs i.e. plaintiffs as contended by the plaintiffs in this case.
51. It is an admitted fact that the suit schedule-A property is the self acquired property of deceased K.Shankar Rao. It is also an admitted fact that late Shankar Rao was employed with HAL, Bengaluru and that he attained superannuation and was practicing Ayurveda after his retirement. His wife Smt. Lakshmidevamma per- deceased him in the year 1978.
52. In the written statement and also in the oral evidence througout it is the contention of the defendants that in view of difference between K.Shankar Rao with the 1 st plaintiff, the 1st planitiff 51 O.S.No.4148/2009 resided separately in some other area during the year 1982 to 1990 and that the first floor premises was mortgaged to A.S.Narayan Murthy for occupation. Subsequently at the intervention of well wishers, K. Shankar Rao has permitted the 1 st plaintiff to reside in the first floor with his family members separately without any intimate relationship. At no point of time, the plaintiffs were looked after well being of the late Shankar Rao. It was always he who looked after the well being of his father Shankar Rao during his life time and even after his death he has performed all the ceremonies by spending money. Further the defendants have stated that late Shankar Rao had written Will out of his own free will and he was hale and healthy and he was not suffering from any disease at the time of executing the Will.
On the contrary, it is the contention of the plaintiffs in the plaint and also in their oral evidence that late Shankar Rao maintained cardinal relationship with all his children (plaintiffs and defendant No.1) and there was no occasion for him to complain of ingratitude or intolerance or any other undesirable conduct by any of the plaintiffs. Every member of the family rendered all assistance to him. Late 52 O.S.No.4148/2009 Shankar Rao always expressed his desire that his two sons namely, the 1st plaintiff and the defendant No.1 together should own the schedule - A property after his demise. According to the plaintiffs, the defendant No.1 has created the said Will taking undue advantage of the fact that the late Shankar Rao in the last days of his life was not in sound and good mental faculty to comprehend the consequences of his conduct.
53. Bearing in mind the above respective contention of the parties, if we turn to the material on record, it is seen that in the cross examination at page No.2 PW 1 has admitted that after retirement from the HAL my father was practicing as Ayurvedic doctor. It is true that my father had sound mind when he was practicing as doctor. He also admitted that my father had clinic in the house. He also admitted at page No.12 of the cross examination that during the life time my father was living in the ground floor. It is true that my father earned good name as Ayurvedic doctor. So also PW 3 who is none other than one of the daughters of late Shankar Rao also admitted in her cross examination that my father was working in HAL, after 53 O.S.No.4148/2009 retirement my father was practicing as Ayurvedic doctor and he earned good name as Ayurvedic doctor. She also admitted that my father had capacity to advise the persons to live in a correct way. She also admitted that till his death my father was practicing as Ayurvedic doctor. She also admitted in her cross examination that my father alone operating his bank account. She also admitted that at the time of death, my father was not suffering from any disease. But voluntarily she stated that my father had little-bit of unsound mind.
The above evidence of PW 1 and 3 as stated by them in their cross examination collectively shows that after retirement from the service their father late Shankar Rao was practicing Ayurveda in the ground floor of the house and that till his death he was practicing as an Ayurvedic doctor and that he had no any disease at the time of his death. Even if we peruse the in-chief evidence and cross of DW 1 to 3, it is seen that they also stated in their evidence that at the time of executing the Will late Shankar Rao was in sound mind and not suffering from any disease. If at all the deceased Shankar Rao was unsound mind and not capable to understand the things as 54 O.S.No.4148/2009 contended by the plaintiffs, they would have produced convincing evidence before the court to that effect. But the plaintiffs have not produced any convincing evidence before the court in order to show that at the time of executing the said Will i.e. in the year 2008 deceased Shankar Rao was unsound mind and suffering from disease.
Therefore, in view of the above reasons it can be stated that even though at the time of execution of the alleged Will the deceased Shankar Rao was aged about 99 years, but he had sound mind and he was not suffering from any physical disease.
54. In the cross examination at page No.8 the learned counsel for the defendants put a question to PW 1 that the defendant No.1 was staying with his father and rendering help to him. To the said question PW 1 has answered that they also staying with their father. But in order to show that the plaintiff No.1 was also staying with his father and rendering service to him during his old age, the plaintiffs have not produced any convincing evidence before the court. In the cross examination PW 1 has admitted that my father had mortgaged 55 O.S.No.4148/2009 the first floor of the house to one Sri.A.S.Narayana Murthy for a period of 5 years. Ex.D1 certified copy of mortgage deed dated 21.01.1983 also shows the same. This shows that the first floor of the house was mortgaged to the said A.S.Narayana Murthy by the father of 1st plaintiff and defendant No.1 in the year 1983 for a period fo 5 years i.e. upto January 1988. From this it can be inferred that in between the year 1983 to 1988 the first plaintiff and his family members were not at all residing in the first floor of the house. This shows that the father of plaintiffs and defendant No.1 Shankar Rao was residing in the ground floor along with the defendants and they are taking care of him and rendering service to him when he was alive. Even though the plaintiffs have contended that every member of the family rendered all assistance to the deceased Shankar Rao even in his last days, but in order to show the same the plaintiffs have not at all placed any material evidence before the court. In the cross examination PW 3 has admitted that after the death of my mother my father (deceased Shankar Rao) was living with the 1 st defendant. Even the defendants have also stated in their written statement and also in the oral evidence that after retirement the deceased Shankar 56 O.S.No.4148/2009 Rao was living with them in the ground floor and they alone rendering service to him. Therefore, from the above evidence of both the parties, it can be stated that after retirement late Shankar Rao was living with the defendant No.1 and his wife in the ground floor of the house and that he was practicing as Ayurvedic doctor in the ground floor and the defendants alone are taking care of him in his age old days.
If we peruse the contents of Ex.D3 alleged Will, it shows that the deceased Shankar Rao had four daughters and two sons i.e. present plaintiffs and defendant No.1 and that he performed the marriage of all his daughters and they are residing in their husbands house happily and they are well off financially and therefore, they does not need any financial assistance. It is also mentioned in the said Will that his first son (1 st plaintiff) and his wife Smt. Venkatalakshmi both were employees in BEL factory and took voluntary retirement and they are well off financially. Even though they does not need financial assistance still he had given Indira Vikasa Patra on 28.09.1999 of face value of Rs.15,000/- for a term of 5 years and after the completion of the period, he encashed a sum of 57 O.S.No.4148/2009 Rs.30,000/- at Rajajinagar Post office and he had not return the said amount to me. It is also mentioned in the Will that they (plaintiff No.1 and his wife) have not at all given any assistance either by way of money or physical assistance to him and therefore, in his self acquired property they have no right over the same. It is also mentioned in the Will that his second son K.S.Chandramouli (defendant No.1) is working as LIC Agent and that the said Chandramouli and his wife Nagaratnamma and myself (Shankar Rao) were residing in the ground floor and they are taking care of him in his age old days out of their small earning and that the said Chandramouli and Nagaratnamma have no source of income for their livelihood.
55. Bearing in mind the above wordings contained in Ex.D3 Will, if we peruse the material on record it is seen that it has come in the evidence of PW 1 and 3 that after retirement the deceased Shankar Rao was residing with the defendants in the ground floor. Even in the cross examination PW1 has stated that after my marriage I was staying with my father, but in the year 1980-81 for 58 O.S.No.4148/2009 about 2 years I was staying outside because tenants were residing in our house. But the contents of Ex.D1 copy of mortgage deed apparently shows that the 1 st plaintiff and his family members were not residing in the first floor of the house as his father Shankar Rao had mortgaged the same to one A.S. Narayana Murthy for a period of 5 years i.e., from January 1983 to January 1988. This shows that the 1st plaintiff - PW 1 has stated a false evidence in his cross examination by stating that only for a period of two years he was staying outside, as tenants were residing in their house. In the cross examination the 1st plaintiff - PW 1 has admitted that he worked in BEL factory thereafter he retired from the service. He also admitted that my wife worked in the BEL factory and took voluntary retirement. PW 1 has also admitted in his cross examination that when my father was alive he was residing in the ground floor of the house. PW3 K.Saraswthi (daughter of Shankar Rao) has stated in her cross examination that I am the fourth daughter of Shankar Rao. My marriage was took place in the year 1978. My father had performed my marriage. After my marriage I am residing in the matrimonial house with my husband. In the cross examination even though PW 3 59 O.S.No.4148/2009 has stated that when my father was alive he was residing along with 1st plaintiff and defendant Chandramouli, but in order to show the same the plaintiffs have not produced any material evidence before the court. In the cross examination PW 1 has admitted that till the death of my father the 1st defendant Chandramouli was residing along with my father in the ground floor of the house.
Therefore, the above evidence of PW 1 & 3 itself shows that as contained in Ex.D3 Will the deceased Shankar Rao had four daughters and two sons i.e. present plaintiffs and defendant No.1 and that he performed the marriage of all his daughters and they are residing in their husbands house happily and they are well off financially and therefore, they does not need any financial assistance. It is also mentioned in the said Will that his first son (1 st plaintiff) and his wife Smt. Venkatalakshmi both were employees in BEL factory and took voluntary retirement and they are well off financially. Even though they does not need financial assistance still he had given Indira Vikasa Patra on 28.09.1999 of face value of Rs.15,000/- for a term of 5 years and after the completion of the period, he encashed a sum of Rs.30,000/- at Rajajinagar Post office 60 O.S.No.4148/2009 and he had not return the said amount to me. It is also mentioned in the Will that they (plaintiff No.1 and his wife) have not at all given any assistance either by way of money or physical assistance to him and therefore, in his self acquired property they have no right over the same. It is also mentioned in the Will that his second son K.S.Chandramouli (defendant No.1) is working as LIC Agent and that the said Chandramouli and his wife Nagaratnamma and myself (Shankar Rao) were residing in the ground floor and they are taking care of him in his age old days out of their small earning and that the said Chandramouli and Nagaratnamma have no source of income for their livelihood.
When the evidence of PW 1 and 3 shows that they have not at all taken care of their father after his retirement till his death and that they have not at all rendered any service to their father during last days and as the defendant No.1 and his wife alone taken care of late Shankar Rao after retirement till his death and they rendered service to the deceased during his life time, naturally as the 1 st defendant Chandramouli is none other than the second son of late Shankar Rao and he had taken care of the deceased during his life time in the first 61 O.S.No.4148/2009 floor of the house, as the 1st defendant and his wife were employees of BEL factory and they are well off financially, as the 1 st defendant is working as LIC Agent and earn only little-bit of amount and out of that amount the 1st defendant and his wife are looking after late Shankar Rao during his life time, in such situation one can understand that as the schedule - A property is the self acquired property of deceased Shankar Rao, naturally he would make such Will only in favour of the defendants by excluding his another son and daughters as they are well-off financially when compared to the second son of the deceased i.e. the 1st defendant. Therefore, in such a situation it cannot be said that the deceased Shankar Rao disinherited his natural heirs i.e. the plaintiffs while executing the alleged Will Ex.D3 only in favour of the present defendants. In Ex.D3 Will itself the said K.Shankar Rao (testator) has clearly mentioned the reasons as to why he excluded his another son and daughters (plaintiffs) in the Will to give any property to them in the A-schedule property. Hence, the contentions as raised by the learned counsel for the plaintiffs as stated above is not a suspicious circumstances surrounding the execution of the Will.
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56. The third suspicious circumstances as contended by the learned counsel for the plaintiffs is that the signature present in Ex.D2 the alleged draft Will dated 10.05.2008 and the signatures present in Ex.D3 alleged registered Will dated 21.05.2008 purported to be signature of late Shankar are not tallied with each other and therefore, the deceased Shankar Rao has not at all executed Ex.D3 Will and also he has not at all written Ex.D2 draft Will and therefore, this one of the suspicious circumstances surrounding the execution of the Will.
57. If we peruse the contents of Ex.D2 draft Will with that of Ex.D3 registered Will, it is seen that the contents of the draft Will (Ex.D2) are almost one and the same as contained in Ex.D3 alleged Will. According to the defendants this Ex.D2 draft Will was written by the very same late Shankar Rao and on the basis of the said draft Will, the scribe has prepared Ex.D3 registered Will and thereafter the same was registered in the office of the Sub-Registrar by the deceased.
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O.S.No.4148/2009 During the course of arguments, the learned counsel for the plaintiffs has argued that neither in Ex.P5 reply notice nor in the written statement the defendants have stated with regard to Ex.D2 draft Will of the deceased and therefore, Ex.D2 draft Will is a created document for the purpose of this case and no such document was written by the deceased Shankar Rao during his life time and the signature present in the said document is not belong to late Shankar Rao.
As against this, the learned counsel for the defendants has argued that it is true that in the Ex.P5 reply notice and also in the written statement, the defendants have not stated regarding presence of Ex.D2 draft Will written by the deceased Shankar Rao, but this document was present along with Ex.D3 original registered Will and Ex.D4 original sale deed in the locker maintained by deceased Shankar Rao which is present in the ground floor of the house and that after funeral ceremony when the locker was opened by the 1st defendant, the said documents were present and that for the assistance of the court at the time of evidence this draft Will was 64 O.S.No.4148/2009 produced before the court and get it marked as Ex.D2 and the defendants have not hidden this document.
58. It is seen that in this case the defendants are claiming their right, title over the schedule - A property based on the main document i.e. Ex.D3 registered Will dated 21.05.2008. According to them that is the last Will of the deceased. The defendants are not claiming their right and title over the A- schedule property mainly on Ex.D2 draft Will dated 10.05.2008. Therefore, keeping this in mind, if we peruse the material on record, it is seen that even though it is contended by the plaintiffs that Ex.D2 draft Will is a created document and the signature present in the said document as 'K.Shankar Rao' is not the signature of their father and that the signature present in Ex.D2 and also signatures present in Ex.D3 as 'K.Shankar Rao' are not tallies with each other, but while taking such contentions at the time of arguments, the plaintiffs would have taken steps to send these disputed documents (Ex.D2 and D3) along with any other admitted handwritten document of the deceased containing admitted signature to the Handwriting Expert for 65 O.S.No.4148/2009 comparison of the admitted document with the disputed documents and to get the opinion from the Expert in order to know whether the signature present in Ex.D2 and D3 are not tallies with each other and they are not the signatures of Shankar Rao.
As the plaintiffs have not taken such steps for sending the disputed Ex.D2 and D3 documents for comparison by the handwriting expert with any of the admitted document of the deceased containing signature, in such circumstances, by invoking Section 73 of the Indian Evidence Act the court can compare the disputed writings with the admitted writings and after making the comparison the court may form the opinion by comparing the disputed and admitted writings and signature.
59. In this case the plaintiffs have disputed Ex.D2 draft Will and also Ex.D3 registered Will. According to the defendants Ex.D2 is the holograph Will i.e. the same was written by the very deceased Shankar Rao. Even though the plaintiffs have disputed the above contention of the defendants, but the plaintiffs have not produced other admitted handwriting of the deceased Shankar Rao in order to 66 O.S.No.4148/2009 compare the same with this disputed handwriting in Ex.D2. Therefore, even the court is unable to compare the disputed handwriting in Ex.D2 as there is no admitted handwritten document of deceased Shankar Rao is produced by the plaintiffs. However, the court can compare the signature present in Ex.D2 'K.Shankar Rao' with that of the signatures present in Ex.D3 in all the pages as 'K.Shankar Rao'.
If we carefully analyze or compare the signature present in second page of Ex.D2 document as 'K.Shankar Rao' along with the signatures present in each page as 'K.Shankar Rao' in Ex.D3 document at a time with naked eyes, it is seen that the nature and style of the word 'K' and the style of first word 'S' and last word 'Rao' in the signatures in both documents appears to be in the same style. Therefore, on comparison of the signature present in Ex.D2 with that of the signatures present in Ex.D3 it is my considered opinion that the said signatures present in both the documents are tallies with each other and the said signatures are belong to the same person 'K.Shankar Rao'. That apart, in the in-chief evidence, the scribe of Ex.D3 Sri.Thimmaraya Swamy, Advocate, Bengaluru has stated 67 O.S.No.4148/2009 that Shankar Rao came along with documents and asked him to write a Will. The said Shankar Rao came along with draft Will and shown the same to him and the said draft Will is Ex.D2 document. Even though the learned counsel for the plaintiffs has cross examined DW2 , but there is no worth has been elicited from his evidence to impeach his veracity with respect to the above evidence is concerned. It is seen that this Ex.D2 document is produced from proper custody i.e. the same has been produced by defendant No.1 as the said document was present along with Ex.D3 and D4 documents in the locker maintained by the deceased in the ground floor of the house where the deceased and defendants are residing there. Therefore, it is stated that Ex.D2 draft Will dated 10.05.2008 was drafted by late K.Shankar Rao and the signature present in the second page of the document is the signature of K.Shankar Rao. Even though the defendants have not stated regarding Ex.D2 draft Will in their reply notice and in the written statement, merely on that score itself the contention of the defendants cannot be doubted as Ex.D2 document though produced later in this case at the time of 68 O.S.No.4148/2009 evidence, but the same was produced from proper custody i.e. by the defendants.
Therefore, in view of the above reasons, it is stated that the contention as raised by the learned counsel for the plaintiffs regarding suspicious circumstances surrounding the execution of Will is not a legitimate suspicion.
60. The fourth suspicious circumstances as stated by the learned counsel for the planitiffs is that the language written in Ex.D2 alleged draft Will is not that of layman and some technical words are mentioned in the said document and therefore, the said draft Will was not at all written by late K.Shankar Rao and hence this is one of the suspicious circumstances surrounding the execution of the Will.
As against this the learned counsel for the defendants has argued that the deceased K.Shankar Rao himself has written the said draft Will and on the basis of the same Ex.D3 Will was prepared by the scribe and there is no suspicious circumstances surrounding the execution of the Will.
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61. If we peruse the contents of Ex.D2 draft Will dated 10.05.2008 it is seen that the language written in the said document is as that of lay person and that there are no technical or legal words are mentioned or stated in this draft Will. The contents of Ex.D2 draft Will and contents of Ex.D3 registered Will are almost similar in nature. Therefore, it cannot be said that the language written in Ex.D2 draft Will is not that of layman and technical or legal words are mentioned in the said document which is unknown to the person who written the document. In the circumstances, it is stated that the contention as raised by the learned counsel for the plaintiffs regarding suspicious circumstances surrounding the execution of Will is not a legitimate suspicion.
62. The fifth suspicious circumstances as contended by the learned counsel for the plaintiffs is that the Sub-Registrar ought to have endorsed or made endorsement to the effect that he has explained the contents of Ex.D3 to the executor, in order to show the same certificate to that effect is not appended or found in this Will in 70 O.S.No.4148/2009 question, a presumption has to be drawn that it is surrounded with suspicious circumstances.
As against this the learned counsel for the defendants has argued that Ex.D3 Will was registered in the office of the Sub- Registrar and the Sub-Registrar has followed the rules while registering the document and the certificate to be appended to the said Will is not necessary by the concerned Sub-Registrar and therefore, there is no such suspicious circumstances surrounding the execution of Will. In this regard, the learned counsel for the defendants has cited the above decision of our Hon'ble High Court reported in 2017 (4) KCCR 3428- VEERABHADRAYYA AND ANOTHER VS. MYTRA BAI.
In the above decision, pertaining to this aspect of the matter, in para No. 54 and 55 of the judgment our Hon'ble High Court has stated as under:
"Mr. Ashok S. Kinagi has contended that there is inconsistency in the evidence between PW-2 and PW-5 and as such said inconsistency itself is to be construed as suspicious circumstance surrounding the execution of the Will, this Court is not inclined to accept said plea for reasons more than one. Firstly, minor discrepancies even if any, would not be a good ground to disbelieve the execution of a Will. The 71 O.S.No.4148/2009 disputed Will was executed by Smt. Gangabai in the year 1997. PW-5 Sub-Registrar was examined in the year 2013 i.e. after a lapse of almost 16 years by which time age has catched up with him, memories is bound to fade with regard to micro details and even otherwise, the entire evidence has to be taken into consideration. For this proposition, judgment of Division Bench of this Court in the case of Puttanna Shetty (Deceased) By Lrs and others v. Padma Shetty (Deceased) By Lrs and others reported in 2007 (3) KCCR 2107 (DB) can be looked up. Hence, when evidence of P.W-5 is read in its entirety, it would clearly disclose that he was the Sub- Registrar at the undisputed point of time when the document in question was presented for registration and he had received said document, registered the same and he has identified the thumb mark of deceased Smt. Gangabai found on Ex.P-7. He has also identified his signature found on the document as per Ex.P-7(d) to (g). He further states that he has explained the contents of Ex.P-7 to the executant and the attesting witnesses and after they understood the same, they have signed Ex.P-7 before him admitting the contents and he has also affixed his signature. At this juncture, it would be apt to note the contention of Mr. Ashok S. Kinagi, learned counsel appearing for the appellants where-under he contends that Sub-Registrar ought to have endorsed or made endorsement to the effect that he has explained the contents of Ex.P-7 to the executor, since she was an illiterate lady and on account of such certificate having not been found in the document in question, a presumption has to be drawn that it is surrounded with suspicious circumstances. Though at the first blush, said argument looks attractive, it cannot be accepted for the simple reason that the Karnataka Registration Rules, 1965 would indicate that under Rule 73 certain duties are required to be performed by the Registering Officer and it reads as under:72
O.S.No.4148/2009 "73. Duties of the Registering Officer - (i) It shall form no part of the Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document, provided execution is duly admitted; but in case of executant's who are unable to read, the document shall be read out and if necessary explained to them. If the document is in a language which they do not understand it must be interpreted to them.
(ii) xxx."
55. A bare reading of sub-rule (i) of Rule 73 would indicate that execution could be duly admitted by the Registering Officer in case of executant's who are unable to read the document, the contents of it is to be read out and if necessary explained to them and if the document is in a language which they do not understand, it must be interpreted to them. Nowhere the rule mandates that a certificate is to be appended or enclosed to said document certifying that contents of document is read-out or explained the contents of it or the interpretation of the contents of the document so made to the executant. In the absence of any statutory obligation cast on the Sub-Registrar, it cannot be gainsaid that on account of such non-certification by the Sub-Registrar the document is to be viewed suspiciously. In the absence of any statutory obligation cast on the Registering Officer, he is under no obligation to certify to the said effect in the document. In the light of the evidence of Sub-Registrar itself being available on record, which discloses that he had explained the contents of Ex.P-7 to the executant as well as the attesting witnesses, said document cannot be held that it came into existence in suspicious circumstances."
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O.S.No.4148/2009 In the case on hand, in the cross examination of DW 2 the learned counsel for the plaintiffs put a question with regard to the provisions of Section 34 of the Registration Act to be followed by the Sub-Registrar at the time of registration of the document. In page No.4 of the cross examination DW 2 has admitted that it is true that when this type of document is produced in the office of the Sub- Registrar the concerned Sub-Registrar has to make an enquiry of the Executant of the document as per Section 34 of the Registration Act. When the learned counsel for the plaintiffs put a question to this witness that whether the Registering Officer had made enquiry the said Shankar Rao when the Will was presented for registration and in this regard whether an entry has been made in the register. Witness answered that enquiry was made, but I do not remember regarding the entry made in the register. On seeing Ex.D3 document this witness has admitted that no entry was made in the document after such enquiry made.
The above evidence of DW 2 scribe of Ex.D3 document shows that the concerned Sub-Registrar made an enquiry upon the executant of the Will (Ex.D3) before registering the document. In 74 O.S.No.4148/2009 view of the ratio laid down by our Hon'ble High Court in the above decision, in the absence of any statutory obligation cast on the registering officer, he is under no obligation to certify to the said effect in the document. Therefore, the above contention of the plaintiffs that as a certificate is not appended or enclosed to Ex.D3 document certifying that the contents of document is read out or explained the contents of it or the interpretation of the contents of the document so made to the executant, is not a suspicious circumstances surrounding the execution of the Will as contended by the learned counsel for the plaintiffs.
63. As per section 63 of the Succession Act whenever the question of validity and the due execution of the Will crops up before the court the court has to see whether there is due execution of the Will. As per the Section 63 of the Succession Act, three requirements are necessary.
1. That the testator has signed or affixed his mark to the document of Will or it has got to be signed by some other person in his presence and by his direction.
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2. The signature or mark of the testator or the signature of the person signing at his direction has to appear at a place from which it could appear by that mark or signature the document was intended to have effect as a Will and lastly.
3. The Will has to be attested by two or more witnesses and each of these witnesses mus have seen the testator sign or affixing his mark to the Will or must have seen some other person signed he Will in the presence and by the direction of the testator or must have received from the testator a personal acknowledgement of his signature of mark or of the signature or such other person and each of the witness has to sign the Will in the presence of the testator."
64. In the case on hand the plaintiffs have specifically contended that the defendant No.1 has created Ex.D3 Will taking undue advantage of the fact that late Shankar Rao in the last days of his life was not in sound and mental faculty to comprehend the consequences of his conduct. On the other hand, the defendants have contended in their written statement that the registered Will dated 21.05.2008 (Ex.D3) is perfectly valid in the eye of law and the same was made or executed by late Shankar Rao in favour of defendants as the defendants looked after him during his life time and rendered services to him till his death.
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O.S.No.4148/2009 In view of the above respective contention of the parties, as the plaintiffs have denied the execution of the Will by late Shankar Rao, the onus of proving execution of the Will lies in every case upon the party propounding the Will and he / she must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator.
65. In order to prove the execution and attestation of the Will the defendants have examined two witnesses i.e., DW 2 Sri.Thimmaraya Swamy, Advocate, Bengaluru, who is said to be the scribe of Ex.D3 Will and DW 3 Sri. C.G.Lakshmipathy who is said to be one of the attesting witnesses to Ex.D3 Will.
66. DW2 Sri. Thimmaraya Swamy, Advocate Bengaluru is said to be the scribe of Ex.D3 Will. In the in-chief evidence DW 2 has stated that he himself has drafted Ex.D3 Will. One Shankar Rao approached him along with documents and asked him to write a Will. The said person came along with draft Will and shown the same to me, that document is Ex.D2. Further he has deposed that 77 O.S.No.4148/2009 at that time the said Shankar Rao was aged 99 years still he is quite alright both physically and mentally. Thereafter I drafted the Will and got it typed on 21.05.2008 and presented for registration in the office of Sub-Registrar, Rajajinagar. Earlier to that K.Shankar Rao had put his signature in the presence of witnesses and Sub-Registrar. One C.V.Prakash and Lakshmipathy put their signature to the said Will as witnesses. Witnesses were brought by the said Shankar Rao. At the time of evidence, this witness has identified the signature of K. Shankar Rao on each page of the document and the same were marked as Ex.D3(a) to (I). Further he has stated that after registration of the Will he handed over the same to the said K.Shankar Rao.
In the cross examination DW 2 has stated that one Kumaraswamy who is having shop in front of my house took the said Shankar Rao for the first time into my office. I got prepared the Will about 8 days from the date of visit by the said Shankar Rao. When the Will was ready, thereafter th said Shankar Rao came to my office. At that time I read over the contents of the said Will to the said Shankar Rao, at that time nobody present. I do not remember who 78 O.S.No.4148/2009 took Shankar Rao to the Sub-Registrar office. When Shankar Rao was came to Sub-Registrar, at that time his family persons were not present. In the cross examination DW 2 has stated that without anybody support Shankar Rao came to the sub-Registrar office and he himself has stated the facts in order to write the Will and therefore, he is saying that the said Shankar Rao was physically and mentally fit. This witness has denied the suggestion that the said Shankar Rao was not in a position to read and understand the contents of the document. Even though the learned counsel for the plaintiffs has cross examined this witness, but there is no worth has been elicited from his evidence to impeach his veracity.
67. DW 3 Sri. C.G. Lakshmipathy, resident of Nagadevanahalli, Bengaluru has stated in the in-chief evidence affidavit that he know the deceased Shankar Rao who was practicing as Ayurveda doctor in his house at Rajajinagar, Bengaluru. He used to go to Shankar Rao for treatment as patient. Since he was a patient taking treatment from the deceased K.Shankar Rao, he had become a close acquaintance of deceased K.Shankar Rao. The 79 O.S.No.4148/2009 deceased Shankar Rao was hale and healthy and he was in sound state of mind and he is able to write and read the documents. The deceased K.Shankar Rao had requested him to come over to Sub- Registrar office, at Rajajinagar and accordingly he went to the office of Sub-Registrar on 21.05.2008. Further he has stated in the affidavit that on 21.05.2008 the deceased Shankar Rao had signed the Will in the office of Sub-Registrar, Bengaluru in the presnece of myself and another witness by name C.V. Prakash and the Will also has been signed by an Advocate by name M.Thimmaraya Swamy. Myself and another witness C.V. Prakash have signed the Will as attesting witness in the present of each other and in the presence of deceased Shankar Rao and scribe of the Will Sri. M. Thimmaraya Swamy. At the time of evidence, this witness has identified his signature in Ex.D3 will and the same was marked as Ex.D3(h). He also stated that myself and C.V. Prakash put our signature as witnesses to the Will. This witness has identified the signatures of Shankar Rao in Ex.D3 Will, which were already marked as Ex.D3(a) to (i).
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O.S.No.4148/2009 In the cross examination DW 3 has stated that I was suffering from breathlessness and body pain. I took treatment for the said disease starting from 1992 to 2008 from the said Shankar Rao. Lastly, I took treatment during the month of February 2008. In order to show that I took treatment from the said Shankar Rao no documents are present. In the cross examination this witness has deposed that in the first week of May 2008, the said Shankar Rao asked him to come to the office of Sub-Registrar on 21 st of the said month as he arranged for registration of Will and he has to come there as a witness to the document. Further he has stated that I went to Sub-Registrar office at about 11-00 a.m. Earlier to that Shankar Rao and Thimmaraya Swamy were present in the Sub-Registrar office. I do not know when C.V. Prakash came there, but I contacted him while putting signature. This witness has deposed that before registration of the Will Shankar Rao and Thimmaraya Swamy read over the Will to him. The said Will was presented for registration at about 2-00 p.m. on that day. The registration was completed at about 3-00 pm. When I put my signature to the said Will it was at about 2-15 to 2-30 p.m. Shankar Rao put his signature in our presence, 81 O.S.No.4148/2009 but I do not remember at what point of time he put his signature to the Will. This witness has denied the suggestion that at that time the said Shankar Rao was not able to write and understand the contents of the document. This witness has deposed in the cross examination that said Shankar Rao used to talk loudly and he used to read over the document and therefore, he is saying that the said Shankar Rao is having good health. Even though the learned counsel for planitiffs has cross examined this witness but there is no worth has been elicitd from his evidence to impeach his veracity.
68. If we analyze the overall evidence of DW 2 and 3 in a proper perspective, it is seen that DW 2 Sri. Thimmaraya Swamy who is scribe of Ex.D3 Will has clearly stated in his evidence that the deceased Shankar Rao came to his office along with draft Will and asked him to prepare a Will. Thereafter he got typed the Will as per the instruction of Shankar Rao and he read over the contents of the Will to the said Shankar Rao and that the witnesses to the said documents were brought by said Shankar Rao to the office of Sub- Registrar and the said Shankar Rao put his signature to the Will in 82 O.S.No.4148/2009 the presence of himself and witnesses. DW 3 Sri.Lakshmipathy has also stated in his evidence that he acquainted with the deceased Shankar Rao as he took treatment from him for the disease since 1992 to 2008 as the said Shankar Rao was practicing as an Ayurvedic doctor in his house at Rajajinagar, Bengaluru. DW 3 has also stated in his evidence that at the request of Shankar Rao he went to the Sub-Registrar office and that the deceased Shankar Rao had put his signature to the Will in the presence of himself and another witness C.V. Prakash and that he and another witness C.V. Prakash have signed the Will as witnesses to the said Will in the presence of K.Shankar Rao and the scribe of the Will. The evidence of DW 2 and 3 is consistent with each other with respect to the above facts. From these facts it can be stated that DW2 is the scribe of Ex.D3 Will and DW 3 is one of the attesting witnesses to the said Will and that these two witnesses have put their signature in the presence of testator and the testator executed the Will in the presence of two witnesses at the same sitting.
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69. It is significant to note that, where the witnesses come before the court and narrate sequence of events showing that after the testator had put his signature on the document they attested the document, the court can easily drawn inference that witnesses had appended their signatures to the document in the presence of the testator. With respect to the due attestation of the Will dated 21.05.2008 the evidence of DW 2 and 3 is reliable and trustworthy. In view of the above reasons, it is my considered opinion that the defendants have removed the suspicion by leading cogent and satisfactory evidence and that they have satisfied the conscience of the court that the instrument so propounded is the last will of free and capable testator. Therefore, as required under Section 63 of the Indian Succession Act and Section 68 of the evidence Act, the defendants have proved the due execution and attestation of the Will (Ex.D3) as required under law.
I have perused the ratio laid down in the above cited SRI.J.T.SURAPPA's case and KAVITA KANWAR's case as relied by the learned counsel for the plaintiffs. The facts of the above cited cases are quite differ from the facts and circumstances of the 84 O.S.No.4148/2009 present case. Hence the ratio laid down in the above decisions are not aptly applicable to the present case.
Hence, in view of all these reasons, I answer the above issue accordingly.
70. ISSUE NO.2 & 3: In the plaint the plaintiffs have alleged that late Shankar Rao also held fixed deposit of Rs.8 lakhs in his name under different account and savings bank account during 1950 with Rajajinagar co-operative Bank Limited. The defendant has surreptitiously contrived to withdrawn even these amounts without the knowledge or intimation to the plaintiffs despite the fact that late Shankar Rao was incoherent and incapable of taking clear decisions during these days immediately preceding his demise. According to the plaintiffs, apart from suit schedule - A property they also entitled for equal 1/6th undivided share in the said F.D. amount of Rs.8 lakhs also.
But in the written statement the defendants denied the right of plaintiffs of their alleged equal 1/6th share in the fixed deposit of Rs.8 lakhs and they also denied above averments of the plaint that the 85 O.S.No.4148/2009 defendant No.1 has surreptitiously withdrawn the said amount without the knowledge or information to the plaintiffs when the said Shankar Rao was incapable of taking decisions preceding his demise.
71. In the cross examination the learned counsel for plaintiffs put a question to DW 1 that in between the period 14.10.2008 to 06.12.2008 he withdrawn a sum of Rs.8 lakhs from the account of his father. To the said question DW 1 has answered that he withdrawn the money and handed over the same to his father. He denied the suggestion that he has misused the said amount of Rs.8 lakhs and that in that amount also the plaintiffs are entitle for share.
The plaintiffs got marked Ex.P2 and P3 statements of account relating to S.B. A/c No.1950 of deceased Shankar Rao maintained in Rajajinagar Co-operative Bank Ltd. Bengaluru. As per the entries of the said documents the defendant No.1 Chandramouli presented the cheque on 14.10.2008 and withdrawn a sum of Rs.50,000/-, again he presented cheque on 25.10.2008 and withdrawn Rs.35,000/-, again he presented a cheque on 26.11.2008 and withdrawn a sum of 86 O.S.No.4148/2009 Rs.3,54,000/-, again he presented a cheque on 27.11.2008 and withdrawn Rs.3,00,000/- and again he presented a cheque on 06.12.2008 and withdrawn a sum of Rs.67,000/- from the account of deceased Shankar Rao. So far as with respect to withdrawal of the above amount from the account of deceased Shankar Rao by the defendant No.1 on the above said various dates is not much in dispute by the defendants as in the cross examination DW 1 has admitted with respect to withdrawal of said amount on various dates by him. But according to him as per the say of his father Shankar Rao he withdrawn the amount on various dates through cheques and handed over the amount to his father.
72. It has come in the evidence that after retirement the deceased Shankar Rao was residing in the ground floor of the house along with defendants and that the defendants alone were taking care of him till his death. There is no convincing evidence on behalf of plaintiff side in order to show that apart from the defendants they also were taking care of deceased Shankar Rao and rendered services to him in his last days till his death. In the absence of any 87 O.S.No.4148/2009 clear evidence to that effect, it can be stated that it is the defendants who were looking after the deceased Shankar Rao starting from the period of retirement till his death. Admittedly, B-schedule property i.e. amount of Rs.8 lakhs is also exclusively belong to the deceased Shankar Rao. As the defendants alone were taking care of the deceased Shankar Rao continuously till his death and they rendered services to him in his old age, legally and morally the defendants alone are entitled for the said amount of Rs.8 lakhs belong to the deceased Shankar Rao for their services rendered to the deceased. That apart, during the life time the said Shankar Rao also executed Ex.D3 Will in favour of defendants out of love and affection and also the services rendered by them to him. Therefore, the plaintiffs have no right to seek their alleged right over 1/6th share in the B-schedule amount of Rs.8 lakhs.
As this court has already hold that the deceased Shankar had executed Ex.D3 Will in favour of the defendants pertaining to the suit schedule - A property and that is the last Will of the deceased. It is seen that in the plaint and also in the evidence the plaintiffs have contended that the defendant No.1 has created the said Will taking 88 O.S.No.4148/2009 undue advantage of the fact that late Shankar Rao in the last days of his life was not in sound and good mental faculty to comprehend the consequences of his conduct. Except taking such bald allegations in the plaint the plaintiffs have not specifically contended in the plaint that the deceased Shankar Rao has not at all put his signature to the Ex.D3 Will and that the plaintiffs have also not taken the contention that the said Will is an outcome of fraud, undue influence or coercion upon the deceased by the defendants. As the defendants have proved the due execution and attestation of the said Will (Ex.D3), the plaintiffs have no right to seek their 1/6th share in the suit schedule - A property also.
Hence, in view of all thsee reasons, I answer the above issue accordingly.
73. ISSUE NO.4: In the written statement the defendants have contended that the court fee paid is insufficient and the value of the proerty is not valued properly and on this ground alone the suit is required to be rejected.
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O.S.No.4148/2009 Even though the defendants have taken such contention in their written statement, but at the time of arguments, the learned counsel for the defendants has not convinced the court nor argued anything with respect to the same as to how the suit is not properly valued and court fee paid is insufficient.
In the prayer column of the plaint, the plaintiffs have sought for the following reliefs.
"1. Declaring registered Will dated 21.05.2008 registered in No. RJN-3-00066/2008-09 stored in CD No. RJND - 123 with the Sub-Registrar, Rajajinagar, Bangalore purportedly executed by Late Shankar Rao is null and void and declare that each of the plaintiff is entitled to 1/6th share in the suit schedule properties and partition plaintiffs' separate 1/6th share in the schedule - A property by metes and bounds and for separate and exclusive possession thereof.
2. Directing the defendants to render accounts of all the fixed deposits and savings account of the deceased Late Shankar Rao, including the schedule B property and to render mesne profits thereon.
3. To pass such other or further order/s as deemed fit to be granted in the facts and circumstances of the case and for costs."
Admittedly, the plaintiffs are not the executants of the instrument or document i.e. Ex.D3 Will dated 21.05.2008. As a main 90 O.S.No.4148/2009 relief they sought for declaration that the registered Will dated 21.05.2008 purportedly executed by late Shankar Rao is null and void and declare that each of the plaintiffs is entitled for 1/6th share in the A-schedule property by metes and bounds. In view of the same the plaintiffs have invoked Section 24 (d) of the Karnataka court Fees and Suits Valuation Act, 1958 and paid a sum of Rs.25/- towards relief of declaration and with respect to relief of partition and separate possession of 1/6th share in the suit schedule - A property, they invoked Section 35 (2) of the said Act and paid Rs.200/- towards court fee, in all Rs.225/- as per the valuation slip. I feel that the above said court fee paid by the plaintiffs on the plaint is proper.
Hence, I answer the above issue accordingly.
74. ISSUE No.5: In view of my reasons as stated in re-casted Issue No.1 dated 25.02.2021 and issue No.2 to 4 and the conclusion arrived at, I proceed to pass the following:
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O.S.No.4148/2009 ORDER The suit of the plaintiffs is dismissed.
No order as to costs.
(Dictated to the Judgment Writer, Online typed by him, corrected and then pronounced by me in open court, this the 26th DAY OF MARCH 2021) (H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri.K.S. Shiva Kumar PW2 Sri. R.Ravi Prakash PW3 Sri. K.S.Saraswathi
Documents marked on behalf of the plaintiff/s:
Ex.P1 Certified copy of sale deed dated 10.11.1972 Ex.P1(a) Typed copy of sale deed Ex.P2&3 Statements of Account Ex.P4 Copy of Legal Notice.
Ex.P5 Reply notice
Ex.P6 Copy of Settlement Deed dated 04.11.2009
Ex.P7 Copy of registered Will dated 21.05.2008
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Ex.P7(a)to(h) Signatures
Ex.P8to10 Photos
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. Chandramouli K.S. DW2 Sri. Thimmarayaswamy DW3 Sri.C.G.Lakshmipathi
Documents marked on behalf of the Defendant/s:
Ex.D1 Certified copy of Mortgage deed dated 21.01.1983
Ex.D2 Draft Will dated 10.05.2008
Ex.D3 Registered Will dated 21.08.2008
Ex.D3(a)to(i)Signatures
Ex.D3(i)&(j) Photos appearing in Ex.D3
XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BANGALORE.
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Judgment pronounced in the open court.
The operative portion of the order reads thus -
ORDER The suit of the plaintiffs is dismissed. No order as to costs.
XXXVII ACCJ, (CCH-38)