Karnataka High Court
Patel Nanjegowda vs Krishnamurthy on 19 November, 2020
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
R.S.A. No.1547/2007 (PAR)
BETWEEN:
1. PATEL NANJEGOWDA
SINCE DECEASED,
REPRESENTED BY LRs.
a) GUNAMURTHY
AGED ABOUT 33 YEARS,
S/O. RAMEGOUDA
SINCE DECEASED BY
OTHER LEGAL HEIRS
b) PURUSHOTTAM
AGED ABOUT 31 YEARS
S/O. RAMEGOUDA,
c) UDAYAKUMAR
AGED ABOUT 29 YEARS,
S/O. RAMEGOUDA,
d) LEELAVATHI
AGED ABOUT 57 YEARS,
W/O. PRABHAKAR
SINCE DECEASED,
REPRESENTED BY LRs.
(d1) VENUGOPAL
S/O. PRABHAKAR
(d2) DEEVAKAR
S/O. PRABHAKAR
BOTH ARE RESIDENT AT
HONAKORAVALLI,
KENCHAMMANA HOSAKOTE HOBLI,
ALUR TALUK,
HASSAN DISTRICT.
(CAUSE TITLE AMENDED AS PER
COURT ORDER DATED 07/06/2017)
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2. LEELAVATHI
W/O. RAMEGOWDA,
ALL ARE R/AT HONAKORAVALLI,
KENCHAMMANA HOSKOTE HOBLI,
ALUR TALUK, HASSAN DISTRICT. ... APPELLANTS
(BY SRI S.P. SHANKAR SENIOR ADVOCATE FOR SMT. MAMATA
G. KULKARNI, ADVOCATE)
AND:
1. KRISHNAMURTHY
AGED ABOUT 54 YEARS,
S/O. PATEL NANJEGOWDA,
SINCE DECEASED,
REPRESENTED BY LRs.
1(a) SMT. SUVARNA
W/O. KRISHNAMURTHY
AGED 52 YEARS,
1(b) SMT. ARPITHA
D/O. KRISHNAMURTHY
AGED 28 YEARS,
1(c) MS. AKSHITHA
D/O. KRISHNAMURTHY
AGED 26 YEARS,
1(d) CHIDANAND
S/O KRISHNAMURTHY
AGED 23 YEARS,
ALL ARE RESIDING AT
KANDANAHALLI VILLAGE,
PLAYA POST, ALUR TALUK,
HASSAN DISTRICT.
2. RAMEGOWDA
S/O. PATEL NANJEGOWDA
SINCE DECEASED,
REPRESENTED BY LRs.
2(a) GUNAMURTHY,
AGED 33 YEARS,
S/O. RAMEGOWDA,
SINCE DECEASED BY
OTHER LEGAL HEIRS.
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2(b) PURUSHOTHAM,
AGED 31 YEARS,
S/O. RAMEGOWDA,
2(c) UDAYKUMAR,
AGED 29 YEARS,
S/O. RAMEGOWDA,
2(d) LEELAVATHI,
AGED 65 YEARS,
W/O. RAMEGOWDA,
ALL ARE R/O. HONAKORAVALLI VILLAGE,
ALUR TALUK, HASSAN DISTRICT.
(CAUSE TITLE AMENDED AS PER
COURT ORDER DATED 18/08/2017)
3. VIJAYAMMA
AGED 58 YEARS,
W/O. JAVAREGOUDA AND
D/O. NANJEGOWDA,
4. POORNIMA, MAJOR
D/O. 3RD RESPONDENT VIJAYAMMA
R/AT KANDANALLI, PALYA HOBLI,
ALUR TALUK, HASSAN DISTRICT. ... RESPONDENTS
(BY SRI K.N. NITHISH, ADVOCATE FOR SRI K.V. NARASIMHAN,
ADVOCATE FOR R-1 (A-D); SRI M. SUDHAKAR PAI, ADVOCATE
FOR R-4; K. YOGESH, ADVOCATE FOR R-2(D))
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED 06.03.2007
PASSED IN R.A.NO.41/2006 ON THE FILE OF THE ADDL.
DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED
06.04.2006 PASSED IN O.S.NO.84/91 ON THE FILE OF THE
ADDL. CIVIL JUDGE (SR.DN.), HASSAN.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY,
COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
Plaintiff Nos.1(a) to 1(d) in O.S.No.84/1991 have filed this appeal, assailing the judgment and decree passed in R.A.No.41/2006, dated 06/03/2007, by the Additional District Judge at Hassan, by which, the judgment and decree dated 06/04/2006, rendered in O.S.No.84/1991, by the Additional Civil Judge (Senior Division), Hassan, decreeing the suit in part was confirmed. By order dated 04/01/2010, this appeal was admitted to consider the following substantial questions of law:
"(1) Whether the Court below was justified in holding that the Will dated 08.11.1992 executed by the deceased plaintiff was vitiated as being a suspicious document? (2) Whether the Court below was justified in holding that the Will was not proved in the face of the evidence of the attestors to the Will, whose evidence remained unchallenged?
(3) Whether the Court below was justified in placing reliance on a judgment in Kalyan Singh vs. Smt. Chhoti, AIR 1990 SC 396, which was rendered wholly in different circumstances?"
2. Parties shall be referred to as per their status before the trial Court for the sake of convenience. -5-
3. The facts in a nutshell are, the original plaintiff, since deceased and represented by plaintiff Nos.1(a) to 1(d), filed the suit seeking partition and separate possession of his half share in the suit schedule properties. During the pendency of the suit, the original plaintiff died and his legal representatives were brought on record as the legatees under the Will and they were permitted to prosecute the suit. Defendant Nos.2 and 3 were impleaded later on. During the trial, defendant No.3 also died and her legal representative was brought on record. The legal representative of defendant No.3 was minor then and without natural guardian. Therefore, the Court guardian was appointed.
4. It is the case of the plaintiffs that the original plaintiff No.1/ Patel Nanjegowda had three sons namely, Ramegowda, Shankara and Krishnamurthy. Shankara died as a bachelor. The first son, Ramegowda took his share in the joint family properties and executed a release deed dated 08/10/1976. The third son, Krishnamurthy is defendant No.1. Subsequent to 08/10/1976, the plaintiff and defendant No.1 continued to be in the joint family and the suit schedule properties were available for partition -6- amongst them. The plaintiff was the manager of the family and he had borrowed a loan of Rs.40,000/- for family necessities. When plaintiff requested defendant No.1 to discharge the loan, the latter wanted the original plaintiff/his father to transfer all the properties in his name, which was not acceptable to the original plaintiff as he felt it not proper to transfer all the properties without discharging the family debt. Hence, plaintiff felt he could not continue in the joint family and he sought for partition and separate possession of the suit properties to an extent of half share against defendant No.1, his son.
5. In response to the suit summons and Court notices, defendant No.1 appeared and filed his written statement admitting the relationship between the parties and also the fact that the first son, Ramegowda was released from the joint family. Defendant No.1, however, denied about the family debt of Rs.40,000/-. He contended that he had discharged the bank loan and was carrying on the agricultural operations. He contended that the house was in a dilapidated condition and it was repaired at a cost of Rs.30,000/-. That, the loan from Allahabad Bank against 1 acre 33 guntas of land in Sy.No.19/A had been discharged by him. He had never neglected the plaintiff, -7- but on the ill-advice of the divided brother Ramegowda and in collusion with him, plaintiff had filed the suit without there being any cause of action. After the death of the original plaintiff, his legal representatives were impleaded pursuant to order passed by the trial Court on 21/10/1995, on I.A.No.3, which was an application filed under Order XXII Rule 2 of the Code of Civil Procedure, 1908 ("CPC" for short).
6. In the Additional written statement, defendant No.1 contended that the Will is illegal and the original plaintiff had no intention to execute any Will. On the date of the Will, the plaintiff was not in good health and sound mind to execute the Will. That Prabhakara (brother-in-law of defendant No.1) in collusion with Leelavathi wife of Ramegowda, concocted the Will in order to cheat defendant No.1, which will not confer any right under the Will. Hence, defendant No.1 prayed for dismissal of the suit.
7. After their impleadment, defendant Nos.2 and 3 filed their written statement admitting the plaint averments in toto and sought for decreeing the suit and allotment of their share in the properties. The Court -8- guardian filed the written statement on behalf of the legal representative of defendant No.3 stating that the minor was not aware of the execution of the Will on 08/11/1992 by the original plaintiff bequeathing the suit schedule properties, which are the joint family properties. That the share of the grand daughter of the plaintiff may be allotted depending upon the proof of Will.
8. On the basis of the rival pleadings, the trial Court framed the following issues and additional issues:
(i) Whether the plaintiffs are entitled to half share in the suit schedule properties?
(ii) To what reliefs, the parties are entitled to?
(iii) What decree or order?
Additional Issues:
(iv) Whether the L.Rs. of the plaintiff prove the execution of 'Will' by late plaintiff Nanjegowda on 08/11/1992 bequeathing the plaint schedule properties in favour of plaintiffs 1(a) to (d)?
(v) Whether the L.Rs. of the plaintiff are entitled to partition and separate possession of their respective shares as per the 'Will'?
In order to prove their case, plaintiffs examined three witnesses namely, PW.1/Leelavathi, PW.2/Prabhakara and PW.3/Mogannagowda. Plaintiffs -9- produced Exs.P-1 to P-3. Defendants examined six witnesses namely, A.N.Krishnamurthy as DW.1, P.R.Prakash as DW.2, Dr.Gururaj Hebbar as DW.3, Dr. Somanath as DW.4, Ramegowda as DW.5 and Vijaya as DW.6 and got marked four documents as Exs.D-1 to D-4. On the basis of the said evidence on record, the trial Court answered issue No.1 in the affirmative, issue No.2 by giving plaintiff No.1(d), defendant No.2 and defendant No.3(a) each 1/8th share and defendant No.1, 5/8th share in the suit schedule properties and the trial Court answered additional issue Nos.4 and 5 in the negative- against the plaintiffs. Accordingly, the suit was decreed in part with a direction to draw up a preliminary decree.
9. Being aggrieved by the fact that the trial Court had not accepted the genuineness of the Will Ex.P-1 said to have been executed by the original plaintiff Patel Nanjegowda, plaintiff Nos.1(a) to 1(d) filed R.A.No.41/2006 before the Additional District Judge, Hassan, the first Appellate Court.
10. Before the first Appellate Court, the following points were raised for consideration:
"(i) Whether Nanjegowda has executed the last Will dated 08/11/1992 while in sound state
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of mind in favour of the plaintiffs 1(a) to 1(d) and additional defendants?
(ii) Whether the plaintiffs are entitled for partition and separate possession in the suit properties as sought by them?
(iii) Whether the judgment and decree of the trial Court in O.S.No.84/1991 is erroneous and calls for interference?"
11. On hearing learned counsel for the respective parties, the first Appellate Court answered point No.1 in the negative, point No.2 partly in the affirmative and dismissed the appeal.
12. Being aggrieved, the plaintiffs have preferred this second appeal. It is already noted that the appeal was admitted on the aforesaid substantial questions of law.
13. I have heard learned senior counsel, Sri S.P. Shankar instructed by Ms. Mamata G.Kulakarni appearing for the appellants and Sri K.N.Nitesh for Sri K.V.Narasimhan, learned counsel appearing for respondent No.1(a) to 1(d) and perused the material on record.
14. Learned senior counsel, Sri S.P. Shankar contended that the trial Court was not right in holding that the testament of the original plaintiff dated 08/11/1992 had not been proved in accordance with law inasmuch as
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the suspicious circumstances were not removed. As a result, by discarding the said Will, shares were allotted to the parties on the basis of the provisions relating to succession under the Hindu Succession Act, 1956. He contended that the Will of the original plaintiff dated 08/11/1992 had been attested by as many as three persons. The same was executed by the original plaintiff, who was the testator. He had bequeathed the properties in favour of the appellants herein who were arrayed as the legal representatives of the deceased plaintiff (testator) under the said testament as the bequest was made to the appellants herein. Therefore, they were entitled to succeed to the properties on the basis of the respective bequests.
15. Learned senior counsel for the appellants contended that the substantial questions of law raised in this appeal would have to be answered in favour of the appellants and the suit may have to be decreed on the basis of the relief sought for by the appellants, but the Trial Court and the first Appellate Court have failed to appreciate the aspect regarding genuineness of the Will and have simply dismissed the suit. In this regard, learned senior counsel drew my attention to the fact that
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the Courts below were not justified in placing reliance on the decision of the Hon'ble Supreme Court in Kalyan Singh vs. Smt. Chooti and others [AIR 1990 SC 396], which was rendered under wholly different circumstances. He therefore, submitted that the substantial questions of law may be answered in favour of the appellants by reversing the findings of the trial Court and first appellate Court and holding that the testament of the original plaintiff dated 08/11/1992 was proved in accordance with law. In this regard, learned senior counsel also drew my attention to the evidence on record.
16. While making the aforesaid submissions, learned senior counsel also sought to contend that, in fact, there is a grave mistake which has occurred in the instant case inasmuch as the recording of evidence on the genuineness of the Will dated 08/11/1992 has been made twice, which was wholly unnecessary. He submitted that when the original plaintiff died, the legatees of his Will dated 08/11/1992 filed an application under Order XXII read with Section 2 of the CPC in order to come on record as the legal representatives. That on the said application, evidence was recorded under Order XXII Rule 2 read with Section 2 of the CPC and by a detailed order, the grand-
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children of the original plaintiff through Ramegowda were substituted as the legal representatives of the original plaintiff, they being the legatees under the Will, by order dated 21/10/1996. Being aggrieved by the said order, defendant No.1 had filed CRP.No.288/1996 before this Court. By order dated 18/09/1998, the Civil Revision Petition was dismissed without interfering with the order dated 21/10/1996. Therefore, there was no need to once again record evidence on the Will dated 08/11/1992 of the original plaintiff. That there is a duplication in the recording of the evidence in the instant case and therefore, the findings arrived at by the Courts below on the recording of evidence subsequently and by coming to a conclusion that the Will was shrouded in suspicious circumstances and not proved in accordance with law is not just and proper. Learned senior counsel therefore contended that this Court has the power to raise an additional substantial question of law and to answer the same in favour of the appellants by holding that when once the Will was found to be genuine and the application filed was considered under Order XXII Rule 2 of the CPC, it was unnecessary to once again record evidence in the case and
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give findings contrary to the findings arrived earlier in the suit.
17. In this context, learned senior counsel for the appellants placed reliance on the judgments of the Hon'ble Supreme Court in the case of Y.B.Patil and others vs. Y.L. Patil [AIR 1977 SC 392] and also Dashrath Rao Kate vs. Brij Mohan Srivastava [AIR 2010 SC 897]. Learned senior counsel contended that there is also a recent judgment of the Hon'ble Supreme Court in the case of Varadarajan vs. Kanakavalli and others [Civil Appeal No.5673/2009 dated 22/01/2020], wherein the Apex Court set aside the judgment of the High Court of Judicature at Madras and allowed the appeal.
18. Learned senior counsel contended that if the findings of the trial Court and first Appellate Court on the validity of the testament dated 08/11/1992 are reversed and it is found that the Will had been proved in accordance with law, then the appellants would only be entitled to succeed to the suit schedule properties and the suit may have to be decreed.
19. Per contra, Sri K.N. Nitish, learned counsel for respondent No.1 supported the judgments of the trial
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Court as well as the first Appellate Court and contended that the said Courts have rightly and concurrently concluded that the suspicious circumstances surrounding the execution of the alleged Will dated 08/11/1992 by the original plaintiff have not been proved by the propounder as well as the legatees. The trial Court as well as the first appellate Court not being satisfied about the veracity/credibility of the evidence of the testator of the Will and also the evidence of the witnesses in support of the appellants have rightly disbelieved the Will and have partitioned the suit schedule properties in accordance with the rules of succession under Hindu Law. Hence, the substantial questions of law may be answered in favour of the contesting respondent and against the appellants and the appeal may be dismissed.
20. In this regard, learned counsel for respondent No.1(a) to 1(d) contended that the initial recording of evidence on an application filed by the appellants under Order XXII Rule 2 of the CPC was in order to permit them to prosecute the suit as legal representatives of deceased Patel Nanjegowda/original plaintiff and not for the purpose of claiming their right, title and interest in the suit
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properties on the basis of the bequest made in the Will dated 08/11/1992.
21. Learned counsel for respondent No.1 contended that the finding given on the genuineity of the Will after making enquiry was only for the purpose of permitting the appellants to come on record to prosecute the suit and not for the purpose of claiming a share in the bequeathed properties. In this regard, it was submitted that against the order dated 21/10/1996, passed on I.A.No.3 filed under Order XXII Rule 2 of the CPC by the appellants herein, though the civil revision petition (CRP.No.288/1996) was dismissed, nevertheless, this Court observed that the observations made by the trial Court in regard to the genuineness of the Will dated 08/11/1992 was only for the purpose of ascertaining as to whether the applicants who filed the application under Order XXII Rule 2 of the CPC could be brought on record. The trial Court holding that they could be brought on record on the basis of the Will dated 08/11/1992 as the applicants were shown to be legatees under the Will, the same did not create any further right in them. As this Court had observed in the Revision Petition, the trial Court had to dispose of the suit on the genuineness of the Will
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strictly in accordance with law. On that aspect of the matter, the trial Court recorded the evidence in detail as, earlier only an enquiry was made on the application under Order XXII Rule 2 of the CPC. Hence, there is no merit in the contention of the learned senior counsel, that the recording of the evidence with regard to the genuineness of the Will was not warranted. He further submitted that the judgments relied upon by the learned senior counsel on this aspect of the matter do not apply to the facts of this case in view of the specific order passed by this Court in CRP.No.288/1996 in this very matter. He submitted that there is no merit in this appeal and the substantial questions of law have to be answered against the appellants and the appeal may be dismissed.
22. Having heard learned senior counsel for the appellants and learned counsel for Respondent No.1, this Court finds the following facts are not in dispute. The original plaintiff Patel Nanjegowda was the Karta of Hindu undivided family. He filed the suit seeking partition and separate possession of his half share in the suit schedule properties against one of his sons. The original plaintiff had three sons namely, Ramegowda, Shankar and Krishnamurthy. The second son, Shankar, who was not
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married and he had passed away leaving behind only the original plaintiff, Krishnamurthy/defendant No.1 and defendant No.3/Vijayamma being the daughter of original plaintiff.
23. Even according to the original plaintiff and defendant No.1, his first son Ramegowda had taken certain properties and was seperated from the joint family after executing a document of release dated 08/10/1976. Therefore, the suit was filed by the original plaintiff against the other coparcener/defendant No.1 and defendant No.3 who was the daughter.
24. During the pendency of the suit, on 17/11/1992, the original plaintiff passed away and on his death, his grand-children through Ramegowda were substituted as his legal representatives, as per the Will dated 08/11/1992. On the demise of the original plaintiff, defendant No.2/Ramegowda (first son of the original plaintiff) and his sister were impleaded as additional defendants. Defendant No.1 contested the Will of the original plaintiff dated 08/11/1992. Defendant No.2 is the first son of the original plaintiff. The legal representatives namely, plaintiff Nos.1(a) to 1(c) are the children of
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defendant No.2, while plaintiff No.1(d) is the other daughter of the original plaintiff and a legatee under the Will. As already noted, plaintiff Nos.1(a) to 1(d)/appellants herein were brought on record due to the fact that their names were mentioned as legatees in the Will of the original plaintiff dated 08/11/1992, which was propounded by them.
25. At this stage itself it may be observed that even prior to arraying them as plaintiffs, an enquiry was held on the application (I.A.No.3) filed by them under Order XXII Rule 2 of the CPC and being, prima facie, satisfied about the genuineness of the Will, they were ordered to be brought on record to prosecute the suit. The order dated 21/10/1996 was assailed by defendant No.1 in CRP.No.288/1996. In other words, the contesting defendant challenged the bringing on record of the legatees under the Will of the original plaintiff. However, the civil revision petition was dismissed by this Court by order dated 18/09/1998, but paragraph Nos.2 and 3 of the order passed by this Court are pertinent and they read as under:
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"2. However any observations made by the trial Court in regard to the genuineness of the Will was only for the purpose of I.A.No.III.
3. The trial Court shall dispose of the suit strictly in accordance with law without being influenced by the order of this Court."
26. Therefore, at this stage itself, it is noted that there is a categorical finding of this Court that the observations of the trial Court with regard to the genuineness of the Will was only for the purpose of holding an enquiry on I.A.No.III. Further, this Court observed that the suit shall be disposed of in accordance with law. Hence, having been permitted to come on record, the Trial Court had to consider as to whether the legatees under the Will, who were the propounders of the Will of the original plaintiff have, indeed, proved the Will in accordance with law or not. Therefore, the real controversy in this case revolves around the substantial questions of law, which have been raised and extracted above, the sum and substance of which is with regard to whether, the propounders of the Will dated 08/11/1992 said to have been executed by the original plaintiff was proved or not.
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27. Before answering the said question, it would be useful to refer to certain judgments of the Hon'ble Supreme Court regarding the proof of Will read as under:
(a) One of the celebrated decisions of the Hon'ble Supreme Court on proof of a Will, reported in AIR 1959 SC 443 is in the case of H.Venkatachala Iyenger vs. B.N.Thimmajamma, wherein, Hon'ble Supreme Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:-
"18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of
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proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied
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would be the usual test of the satisfaction of the prudent mind in such matters."
28. In fact, the legal principles with regard to the proof of the Will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the Will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the Will. In the above noted case, the Hon'ble Supreme Court has stated that the following three aspects must be proved by a propounder:-
"(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In
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other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein."
(b) In Jaswant Kaur v. Amrit Kaur and others [1977 1 SCC 369], the Hon'ble Supreme Court pointed out that when a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding, becomes in such cases a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstances surrounding the making of the will.
(c) In Bharpur Singh and others v. Shamsher Singh [2009 (3) SCC 687], at para 23, Hon'ble Supreme Court has narrated a few suspicious circumstance as being illustrative but not exhaustive in the following manner:-
"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
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(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
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Therefore, in light of the aforesaid dicta of the Hon'ble Supreme Court, the appreciation of the evidence by the Courts below on the validity of the Will would have to be considered.
29. Both the trial Court as well as the first Appellate Court have concurrently found that the plaintiffs, who propounded the Will did not prove the Will in accordance with law, inasmuch as the suspicious circumstances surrounding the execution of the Will had not been removed and therefore, the testament of the original plaintiff could not be looked into for the purpose of decreeing the suit. In the circumstances, the trial Court as well as the first Appellate Court concurrently disregarded the Will dated 08/11/1992 and decreed the suit on the basis of the provisions relating to succession. Though this is a regular second appeal, since the substantial question of law on the validity of the Will of the original plaintiff dated 08/11/1992 has been raised, it is necessary to examine the evidence on the said aspect of the matter. Ex.P-1 is the Will, which is said to have been executed by the plaintiff on 08/11/1992.
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30. In order to prove the said document, PW.1 Smt. Leelavathi, the wife of defendant No.2 and mother and guardian for plaintiff Nos.1(a) to 1(c) was examined. She has stated that she had no knowledge about the execution of the Will by the original plaintiff until Prabhakara, husband of plaintiff No.1(d) informed her about it. According to her, under the Will properties have been bequeathed to her children and also plaintiff No.1(d) whose name is also Leelavathi. She has stated that Ex.P-1 is the Will executed by the original plaintiff. In her cross- examination, PW.1 has stated that the original plaintiff was having sound mind prior to his death but used to visit the hospital at regular intervals. However, she has denied the fact that the testator had executed Ex.P-1 when he was not in a sound disposing state of mind or not capable to execute the Will and her husband and Prabhakara had concocted it. The evidence of PW.1 would clearly indicate that, a few weeks prior to his death, plaintiff was ill and was not in good health and he was taking treatment regularly in the hospital.
31. PW.2/Prabhakara and PW.3/Mogannagowda are two attesting witnesses, who have been examined by the plaintiffs. Prabhakara is the son-in-law of the original
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plaintiff and husband of plaintiff No.1(d), one of the legatees under the Will. According to PW.2, the Will was delivered to him at his house by the original plaintiff. Himself (PW.2), PW.3/Mogannagowda and Biliappagowda had signed the Will as witnesses. The plaintiff had brought the Will to his house and it was drafted and typed through an advocate. In his house, original plaintiff signed the document (Will) and had also put his left hand thumb mark (LTM) in his presence and other attestors. The attestation was seen by the original plaintiff. The Will was executed when the original plaintiff was in sound and disposing state of mind. PW.2 has also stated that on 08/11/1992, at about 8.30 a.m., the original plaintiff asked him to bring PW.3/Mogannagowda, which he did (complied with).
32. In his cross-examination, PW.2 has admitted that some properties have been bequeathed to his wife under the Will and he participated in the execution of the Will. PW.2 has also admitted in his evidence that the original plaintiff was residing in his house and he had spent monies towards his treatment as his relationship with him was cordial and even prior to the execution of the Will, when the suit was filed, the original plaintiff was residing in his house, but PW.2 has stated that he does not know the
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nature of illness of the testator although he was residing with him. PW.2 has also stated that the original plaintiff/his father-in-law had undergone eye surgery. On 17/11/1992, the original plaintiff died in the hospital and the Will was made ten days prior to his death, but the suit was filed earlier in the year 1991.
33. PW.3 is Mogannagowda, who is stated to be one of the attestors of the Will, in his evidence has stated that PW.2 came to his house at Kanada Halli and took him to Honkaravalli to attest the Will to his house, where the original plaintiff and Biliappagowda were present. According to P.W-3, the original plaintiff took out the Will and gave it to PW.2 to read it and thereafter he signed it and subsequently, the original plaintiff asked him to sign the Will, so he attested it along with PW.2 and Biliappagowda. PW.3 has also admitted that one or two years prior to the death of original plaintiff, he was residing in the house of his daughter Leelavathi, wife of PW.2. He has further admitted that he did not know as to why the original plaintiff was signing and putting his LTM on the documents. The evidence of PW.3 is only supportive of what PW.2 has stated but the fact is PW.2 had participated in the preparation of the Will.
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34. Defendant No.1 has deposed as DW.1. DWs.3 and 4 are two doctors, who were treating the original plaintiff.
35. DW.1 in his evidence has stated that in the year 1991, his father had undergone eye surgery and he was visiting Sanjeevini Hospital regularly. DW.3 was treating his father/original plaintiff who had no intention to execute the Will. He has denied the Will and signature of his father in both Exs.P-1 and P-2, but he admits that Ex.P-1 is the alleged Will of his father. He has also stated that, after the demise of his father, he had filed a complaint against defendant No.2 and his wife.
36. DW.3 is Dr. Gururaj Hebbar, who had spoken about the treatment given to the deceased original plaintiff on 11/11/1992 for eye surgery. On 17/11/1992, the plaintiff died as an inpatient in Sanjeevini Hospital and he was around eighty years at that time. According to him, Dr. Somanath had treated the deceased plaintiff at the time of his death. In his cross-examination, DW.3 has stated that PW.2 Prabhakara and his children used to accompany the plaintiff to the hospital. That, he was admitted to the hospital on 16/11/1992 and he died on the
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next day. DW.2 has not stated that, after eye surgery, the eye sight of the original plaintiff was rectified.
37. DW.4, Dr. Somanath was the physician at Sanjeevini Hospital at the relevant point of time and had treated the original plaintiff on 11/11/1992. That on account of acute gastroenteritis resulting to hypovolemic shock, he died. The original plaintiff was also a known diabetic. According to DW.4, when a patient is suffering from hypovolemic shock, he would have low blood pressure, low supply of blood to heart, kidney and brain and he would become semi-conscious. The original plaintiff was suffering from diabetes from a long time. DW.4 has denied the suggestion that plaintiff, inspite of dysentery and vomiting was stable and was able to understand everything. The Will is dated 08/11/1992 and the illness of the plaintiff was three days thereafter.
38. DW.5, defendant No.2 has deposed about his father original plaintiff bequeathing certain properties in favour of his sons. He has admitted in his cross- examination that health of his father was not good and he was admitted to the hospital several times and in fact, his father died in the hospital.
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39. On the basis of the aforesaid depositions of the respective witnesses, the following inferences have been arrived at by the trial Court as well as the first Appellate Court.
40. It is noted that deceased original plaintiff Nanjegowda resided with his daughter and son-in-law namely, Leelavathi and Prabhakara. That his first son had taken his share in the joint family property and was not part of the joint family since the year 1976. Nanjegowda and his son Ramegowda hardly lived together since then. The suit was filed in the year 1991. The original plaintiff Nangegowda died in the year 1992, i.e., on 17/11/1992. The minor children of Ramegowda and the wife of Prabhakara are the legatees under the Will of Nanjegowda. It is difficult to believe that Nanjegowda has bequeathed his share in the suit properties to the three minor children of Ramegowda with whom he hardly had any contact since the year 1976. Further, the deceased Nanjegowda has bequeathed a share to his daughter Leelavathi with whom he resided prior to his death.
41. Further, in the Will it is stated that, there were movables valued at Rs.50,000/- belonging to the family
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which has been sold by the first defendant Krishnamurthy. But, in the plaint, there is no such averment made by the testator, the original plaintiff. Infact, there is no partition of the movable property sought in the suit. Further, the suit was filed by Nanjegowda as the family had certain outstanding debts and Nanjegowda had requested Krishnamurthy (Defendant No.1) to discharge the said debts and when Krishnamurthy did not agree to the said request made by his father Nanjegowda, the latter filed the suit for partition and separate possession. But, there is no reference to the outstanding dues in the Will dated 08/11/1992. If, really the Will had been executed by Nanjegowda, he would surely have made a reference to the discharge of outstanding dues. The Will does not refer to discharge of the loan by the legatees. This aspect assumes significance because the suit was filed by Nanjegowda seeking partition and separate possession of the suit schedule properties when his son Krishnamurthy refused to discharge the outstanding debts of the family to the tune of Rs.40,000/-. The absence of any recital in the Will regarding outstanding debts by the legatees under the Will is therefore significant.
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42. Further, the Will does not disclose any reason as to why Nanjegowda was bequeathing a major portion of his properties in favour of the children of Ramegowda with whom Nanjegowda hardly had any contact. No reason is assigned in the Will as to why the usual course of succession is given a go-by as but for the Will, the so- called legatees under the Will would not have succeeded to the properties except plaintiff 1(d) who is the daughter of the testator. Further, in the instant case, the wife of Ramegowda who is also Leelavathi and who is the natural guardian of minors was examined as P.W-1. Her evidence also cannot be believed as the testator Nanjegowda did not reside with her and her husband Ramegowda prior to his death as Ramegowda was separated from the family way back in the year 1976.
43. Further, P.W-2 Prabhakara in his evidence has stated that the testator Nanjegowda who is also his father- in-law gave the Will at around 8.30.A.M. The Will is a typed document and according to P.W-2, the Will was drafted with the help of an advocate. But there is no evidence as to engaging the services of an advocate or who the said advocate/scribe was. The original Will does not also contain the name of advocate who drafted the
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Will. Also, there is no evidence as to where the Will was typed, about the purchase of stamp paper and as to who typed it. No typist has been examined.
44. Moreover, the residence of P.W.-2 Prabhakara is more than twenty miles away from Hassan. The Will is dated 08/11/1992, the testator Nanjegowda died on 17/11/1992 about ten days thereafter. Nanjegowda was regularly under treatment prior to his death. In fact, he had undergone eye surgery and thereafter he died in hospital. There is no evidence as to what steps/arrangements were made by Nanjegowda for execution of the Will. One of the attestors of the Will is Prabhakara - P.W.-2 whose wife Leelavathi is one of the legatees of the Will and with whom Nanjegowda the testator resided. The other two attestors are Mogannagowda resided about nine miles away from Prabhakara's (P.W.-2) house and the third attestor is Billiyappanagowda who resided twenty miles away from the house of Prabhakara (P.W.-2).
45. The testator also resided with P.W.-2 Prabhakara. There is no evidence as to how these two attestors were summoned by the testator to attest his Will.
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P.W.-2 has stated that he secured Mogannagowda. It is not known as to who secured Biliyappanagowda to attest the Will. The evidence of P.W.-2/Prabhakara and P.W.- 3/Mogannagowda are on the execution of the Will by original plaintiff/Nanjegowda is also inconsistent and contrary to each other.
46. It is also to be noted that Nanjegowda was around 80 years old who had undergone an eye operation and was not in good health. The Will is dated 08/11/1992 and he died soon after on 17/11/1992. The fact that Nanjegowda had problem of vision and was suffering from failing health would indicate that Nanjegowda would not have taken steps to engage services of advocate or scribe in order to execute the Will. On the other hand, the evidence on record would disclose that P.W.-2/Prabhakara played an active role in the preparation of a Will in securing the attestors and getting the signature of Nanjegowda on the Will along with his LTM. In the absence of any instructions given by the testator Nanjegowda in that regard, in the usual course, first appellant - Ramegowda would have succeeded along with his sisters and his brothers, on the basis of a notional partition as per Section 6 of the Hindu Succession Act,
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1956. But, in the instant case the legatees are three minor children of second defendant - Ramegowda with whom the testator had no contact at all and the wife of P.W.- 2/Prabhakara who played an active role in the making of the Will. This aspect clearly probabalises the fact that P.W.-2 Prabhakara and Ramegowda were instrumental in concocting Ex.P-1, Will of the original plaintiff Nanjegowda.
47. Even if for a moment it is found that the signature and LTM on the Will are that of the testator Nanjegowda - the original plaintiff, it is to be inferred that he was not aware of the fact that he was signing his own testament. The bequest is also unnatural and therefore it is inferred that the recitals in the Will cannot be believed. Further, the aforesaid suspicious circumstances surrounding the Will has not been removed by any categorical evidence to the contrary. Hence, the findings arrived at by the first Appellate Court as well as the Trial Court on the validity of the Will in my view, are just and proper.
48. In Dashrath Rao Kate vs. Brij Mohan Srivastava reported in [AIR 2010 SC 897], on which
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heavy reliance was placed by learned senior counsel for the appellants, one of the questions framed was:
"(1) Whether the Court below erred in law in treating the finding recorded in the proceedings under Order XXII Rule 5, CPC to be binding and omitting to decide the question in regard to the locus standi and entitlement of the plaintiff on merits considering the specific pleas urged by the defendant in the written statement subsequent to the substitution of the new plaintiff?"
49. In the said case, the High Court came to the conclusion that since the inquiry under Order XXII Rule 5, CPC was of a summary nature and was limited only to the determination of the right of the appellant therein to be impleaded as the legal representative of Sukhiabai, any finding given in that inquiry would not be binding on the defendant, at the final stage of the suit and the plaintiff (appellant therein) would have to again prove the Will in order to establish his ownership vis-à-vis the concerned premises. For that purpose, the evidence led at the time of inquiry under Order XXII Rule 5 CPC would be of no consequence, as the evidence recorded during the inquiry under Order XXII Rule 5, CPC could not be equated with the evidence recorded at the time of decision on merits.
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50. The High Court also went on to record a finding that the appellant therein was not a family member of Sukhiabai as she was not survived by any class I heir. In short, the High Court held that the Will was not proved independently, though on its basis, the appellant/plaintiff was allowed to be brought as a legal representative of Sukhiabai and proceeded to dismiss the suit.
51. The evidence was again led by the appellant, wherein he asserted that the respondent/defendant was the tenant of Sukhiabai and that he had become his tenant as per the Will, since he has become owner on the basis of the Will. The High Court, however, took the view that the Will had to be proved all over again, though it was held proved earlier in the enquiry under Order XXII Rule 5, CPC.
52. It was observed as a legal position, it cannot be disputed that normally, an enquiry under Order XXII Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. However, the High Court in the said case, reiterated the legal position that the inter se dispute between the rival legal representatives has to be
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independently tried and decided in separate proceedings. There was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant/plaintiff therein. Therefore, there was no question of the appellant/plaintiff proving the Will all over again in the same suit.
53. However, the aforesaid judgment is not applicable to the instant case. In this case, on the death of Nanjegowda, three applications were filed, (i) for the appellants to come on record as legal representatives of the deceased plaintiff (Order XXII Rule 3); (ii) under order XXII Rule 9 of CPC for setting aside the abatement and (iii) an application was filed by Ramegowda, one of the Son's of plaintiff to be impleaded as a defendant and his application was allowed having regard to Section 6 of Hindu Succession Act as it then stood. But, on the aspect of bringing legatees under the Will on record, the Trial Court held that there was no reason to doubt the genuineness of the Will and that the execution of Ex.P-1 the Will had been proved. Therefore, the applicants were held entitled to come on record as legal representatives of deceased plaintiff Nanjegowda. Thus, all the legatees
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under the Will of original plaintiff were ordered to be brought on record by order dated 31/10/1995.
54. The said order was challenged in C.R.P. No.288/1996 before this Court. This Court while dismissing the revision petition observed that the said order of trial Court was only for the purpose of considering the said application and was not to be applied for deciding the suit on merits. Therefore, this Court while keeping all contentions open on both sides observed that the Will had to be proved in accordance with law.
55. In view of the observations made by this Court in revision petition, it is held that the earlier evidence let in by the appellant/legatees was only to come on record so as to prosecute the suit and not on the premise that they had made out a case and proved themselves to be legatees under the testament of original plaintiff who, according to them, had executed the Will dated 08/11/1992.
56. Therefore, in this case, in view of the observations of this Court, it was incumbent upon the plaintiffs to let in evidence to remove all suspicious circumstances on the execution of Will of original plaintiff
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before claiming any right, title and interest as legatees under the said Will. For the aforesaid reasons, the judgment in Y.B.Patil and others vs. Y.L.Patil reported in [AIR 1977 SC 392] is also not applicable to the present case.
57. In view of the aforesaid discussion, it is held that the substantial questions of law are answered against the appellants/plaintiffs and in favour of the respondents/defendants. That the plaintiffs were not successful in removing the suspicion that has clouded the execution of the Will dated 08/11/1992 (Ex.P-1). Therefore, the plaintiffs have not proved the said document in accordance with law. The concurrent findings of the Courts below would not call for any interference in this appeal. Hence, the appeal is dismissed.
Parties to bear their respective costs.
Sd/-
JUDGE S*
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BVNJ: RSA.No.1547/2007 10/12/2020 ORDER ON MEMO "FOR BEING SPOKEN TO"
Since the memo 'for being spoken to' was filed by learned counsel for the appellants on 20/11/2020, the same has been listed today and the judgment dated 19/11/2020 has not yet been released.
This appeal was heard on 19/11/2020 at length and thereafter, the judgment was dictated. Subsequently, on 20/11/2020, a memo 'for being spoken to' was filed on behalf of the appellants by the learned counsel for the appellants seeking to raise further contentions in the matter. The main reason for filing the memo 'for being spoken to' is, in order to contend that the order passed in CRP.No.288/1996 by this Court, which arose from the order dated 21/10/1996 in the very suit, out of which this second appeal arises, could not have been relied upon by the learned counsel for the respondents. It is also stated in the memo that this appeal was disposed of on the basis of false and incorrect submission made by learned counsel for the respondents, contrary to the records. Hence, the memo was filed seeking listing of the matter for being spoken to. That is how the matter is listed today.
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I have heard learned senior counsel for the appellants in person and learned counsel for respondent No.1 through video conference.
It is emphasized by learned senior counsel for the appellants that the order passed by this Court in the civil revision petition in the suit, out of which this regular second appeal arises, could not have been relied upon. In fact, the said submission is controverted by learned counsel for the respondent who has also taken objection to what has been stated in the memo by appellants' counsel. Be that as it may. It is noted that once a matter has been heard at length and disposed of, even in a review petition, there cannot be reopening of the same on the basis of additional decisions and points being canvassed. When that being the position of law with regard to review petitions, on a memo 'for being spoken to', the matter cannot be reopened at the instance of either of the parties.
Moreover, it is to be noted that in this case, the appeal was heard at length on the basis of the substantial questions of law raised and the contentions raised and argued, which have been considered in detail although, this is a second appeal. In fact, there was a discussion on
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the relevance of the order of the learned single Judge passed in CRP.No.288/1996 vis-à-vis on the merits of the case during the lengthy hearing of the appeal. Therefore, the appellants cannot avail any further hearing on the judgment passed on 19/11/2020. Memo is hence rejected.
Sd/-
JUDGE S*