Karnataka High Court
Smt.Annapurnamma W/O Nagappa Kittur vs Sri.Shanmukappa S/O Kotrappa Kittur on 6 March, 2025
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NC: 2025:KHC-D:4340
RSA No. 100036 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100036 OF 2016 (PAR-)
BETWEEN:
1. SMT. ANNAPURNAMMA W/O. NAGAPPA KITTUR,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
SINCE DECEASED AND HER LR'S I.E.
APPELLANTS NO.2 TO 5 ARE ALREADY ON RECORD.
2. SRI. CHIDANANDAPPA S/O. NAGAPPA KITTUR,
AGE: 42 YEARS, OCC: MECHANIC,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
3. SRI. MALATESH S/O. NAGAPPA KITTUR,
AGE: 40 YEARS, OCC: WELDING WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
Digitally signed by
MOHANKUMAR B 4. SRI. PRABHU S/O. NAGAPPA KITTUR,
SHELAR
Location: HIGH
COURT OF
AGE: 37 YEARS, OCC: BUSINESS,
KARNATAKA
DHARWAD BENCH R/O: HOSA NAGAR, NEAR REMAND HOME,
Date: 2025.03.07
16:18:44 +0530 RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
5. SRI. NIJAGUNEPPA S/O. NAGAPPA KITTUR,
AGE: 34 YEARS, OCC: PIGMI COLLECTION & AGENCY,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
...APPELLANTS
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE)
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NC: 2025:KHC-D:4340
RSA No. 100036 of 2016
AND:
SRI. SHANMUKAPPA S/O. KOTRAPPA KITTUR,
SINCE DECEASED BY LR'S.
1A). SMT. LEELAVATI W/O. SHANMUKAPPA KITTUR,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
1B). SRI. UMESH S/O. SHANMUKAPPA KITTUR,
AGE: 33 YEARS,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
2. SRI. ASHOK S/O. IRAPPA KITTUR,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: GANDHI GALLI, DOMBAR ONI,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
3. SRI MAHADEVAPPA S/O. MAHADEVAPPA KITTUR,
SINCE DECEASED BY HIS LR'S.
3A) SMT. GOURAMMA W/O. MAHADEVAPPA KITTUR,
AGE: 77 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANDHI GALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
SINCE DECEASED AND HER LR'S I.E.
RESPONDENTS NO.3(B) & 3(C)(A) & (B)
ARE ALREADY ON RECORD.
3B). SRI. PRAKASH S/O. MAHADEVAPPA KITTUR,
AGE: 52 YEARS, OCC: BUSINESS,
R/O: GANDHI GALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
3C). SRI. ASHOK S/O. MAHADEVAPPA KITTUR,
SINCE DECEASED BY HER LR'S.
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NC: 2025:KHC-D:4340
RSA No. 100036 of 2016
R3C(A) SMT. YALLAWWA W/O. ASHOK KITTUR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O. PAMPA NAGAR, BEHIND NITTOR SCHOOL,
HUNCHIKATTI ROAD, RANEBENNUR,
TAL: RANEBENNUR, DIST: HAVERI.
R3C(B) KUMARI SHRUTI D/O. ASHOK KITTUR,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY HER GUARDIAN
MOTHER RESPONDENT NO.3C(A).
4. SMT. JAYAMMA W/O. CHANNABASAPPA KITTUR,
AGE: 57 YEARS, OCC: HOSUEHOLD WORK,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
5. KUMARI NETRAVATI D/O. CHANNABASAPPA KITTUR,
AGE: 25 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
6. KUMARI KAVITA D/O. CHANNABASAPPA KITTUR,
AGE: 23 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
7. SRI. KUMAR S/O. CHANNABASAPPA KITTUR,
AGE: 21 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
8. SRI. SHASHIKUMAR
S/O. CHANNABASAPPA KITTUR,
AGE: 19 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
9. VISHWA PRINTING PRESS,
BY ITS PROPRIETOR,
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NC: 2025:KHC-D:4340
RSA No. 100036 of 2016
SRI. NAGARAJ MUNDASAD,
AGE: 52 YEARS, OCC: PROPRIETOR,
R/O: SUBHAS CHOUK, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
...RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR R2;
SRI. AVINASH BANAKAR, ADVOCATE FOR R4-R8;
R1(A & B), R3(C)(A) SERVED AND UNREPRESENTED;
R3(B)-HELD SUFFICIENT; R3(A)-DECEASED;
R9-DELETED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT & DECREE DATED 16.11.2015 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI, SITTING AT
RANEBENNUR IN R.A.NO.187/2009 CONFIRMING THE JUDGMENT
AND DECREE DATED 29.08.2009, PASSED BY THE ADDITIONAL
CIVIL JUDGE (SR.DN), RANEBENNUR IN O.S. NO.136/2004 AND
CONSEQUENTLY ALLOW THIS APPEAL, IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is filed by defendant Nos.1 to 4
challenging the judgment and decree dated 16.11.2015 passed in RA No.187 of 2009 on the file of the II Additional District Judge at Haveri (sitting at Ranebennur), dismissing the appeal and confirming the judgment and decree dated 29.08.2009 passed in OS No.136 of 2004 on the file of the Additional Civil -5- NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 Judge (Sr.Dn.), Ranebennur, decreeing the suit of the plaintiffs.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that, Channabasappa- original propositus had three sons namely, Kotrappa, Irappa, and Mahadevappa. Kotrappa had three children, namely, Nagappa (husband defendant No.1 and father of defendant Nos.2 to 5), Channabasappa (husband of plaintiff No.5) and Shanmukhappa (plaintiff No.1). The 2nd son of Channabasappa-Erappa died leaving behind his wife Parvathavva, (plaintiff No.3) and son-Ashokappa (plaintiff No.2). The 3rd son of Channabasappa-Mahadevappa, died leaving behind his wife Gowramma (plaintiff No.4(A)) and two children namely, Prakash (plaintiff No.4(B)) and Ashok (Plaintiff No.4(C)). It is the case of the plaintiffs that, -6- NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 after the death of original propositus-Channabasappa, the 1st son - Kotrappa was managing the affairs of the joint family and has acquired the suit schedule properties, which are undivided ancestral properties of plaintiffs and defendants, in which plaintiff Nos.2 to 4 were residing along with the defendant Nos.2 to 5 in the house property. It is further stated in the plaint that, house property was sold by all the sons of Channabasappa by executing nominal Sale Deed in favour of one Yellappa Venkapppa Ekabote, on 01.05.1946 and the possession of the property was not delivered to Yellappa Venkappa Ekabote and retained by the plaintiffs and defendants. It is also stated that, on 24.06.1972, loan was repaid and as such, the house property was repurchased in the name of Kotrappa- being a manager of the joint family. Hence, it is stated that, the house property bearing CTS No.1591 is the joint family property of -7- NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 plaintiffs and defendants. It is also stated in the plaint that, remaining properties are ancestral properties of the plaintiffs as they were running, Printing Press as well as the Saloon in the schedule property and accordingly, it is the case of the plaintiffs that, the suit properties are the joint family properties of children of Channabasappa. It is also stated in the plaint that, the plaintiffs came to know about the change of khata of the item No.1 'A' and 'B' properties, in terms of the registered Will dated 20.11.1996, said to have been executed by the Kotrappa in favour of his daughter in law- defendant No.1 and therefore, it is the contention of the plaintiffs that the testator-Kotrpapa has no authority under law to execute registered Will in respect of entire share of the properties in favour of defendant No.1 and also stated that, the said Will has been executed under suspicious circumstances to knock off the suit schedule properties and therefore, -8- NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 plaintiffs have filed OS No.136 of 2004 seeking relief of partition and separate possession in respect of suit schedule properties.
4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant No.1 that, the 2nd son of Kotrappa-Channabasappa has no legal heir and also stated that the suit schedule properties are not the ancestral or joint family properties of the plaintiffs and the defendants and the schedule properties were self acquired properties by Kotrappa. It is the principal contention of the defendant No.1 that, the said Kotrapppa in his life time had acquired the suit schedule properties out of his own income and as such, executed registered Will in favour of defendant No.1 and accordingly, it is the case of the defendant No.1 that, she became the absolute owner -9- NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 of the property mentioned in the registered Will. It is also stated that, as Kotrappa was member of the Co- Operative Society-Anand Bhavan Housing Co- Operative Society and Item No.C of the schedule property was sanctioned by the said Society to the Kotrappa and therefore, Kotrappa is having absolute right to execute the registered Will in favour of defendant No.1. It is also specific case of the defendant No.1 that, Kotrappa had reposed confidence with defendant No.1 and defendant No.1 was taking care of the health of her father in law-Kotrappa and therefore, the said Kotrappa executed registered Will dated 20.11.1996 in favour of defendant No.1 and accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration.
6. In order to establish their case, plaintiffs have examined two witnesses as PW1 and PW2 and got
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 marked 08 documents as Exs.P1 to P8. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 10 documents as Exs.D1 to D10.
7. The Trial Court, after considering the material on record, by its judgment and decree dated 29.08.2009, decreed the suit of the plaintiffs and being aggrieved by the same, the defendant Nos.1 to 5 have preferred Appeal in RA No.187 of 2009 on the file of First Appellate Court and the said appeal was resisted by the plaintiffs. The First Appellate Court, after re- appreciating the facts on record, by its judgment and decree dated 16.11.2015 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.136 of 2004. Being aggrieved by the same, the appellants/defendant Nos.1 to 5 have preferred this Regular Second Appeal under Section 100 of CPC.
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016
8. I have heard Smt. Pallavi S. Pachhapure, learned counsel for the appellants and Sri. N.P. Vivek Mehta, learned counsel appearing for the respondent No.2 and Sri. Avinash Banakar, learned counsel for the respondent Nos. 4 to 8.
9. Smt. Pallavi S. Pachhapure, learned counsel for the appellants submits that, both the courts below have committed an error in arriving at a conclusion that, the defendants have to prove the execution of the registered Will as well as the severance of the joint family members of original propositus- Channabasappa and his son Kotrappa's family and the said finding recorded by both the courts below requires to be interfered with in this appeal. It is further arguments of learned counsel appearing for the appellants that, Kotrappa had acquired the suit schedule properties on account of his own earnings and nothing has been pointed with regard to
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 acquisition of properties by remaining two brothers, namely Irappa and Mahadevappa and therefore, finding recorded by both the courts below that the suit schedule properties are joint family properties of Channabasappa cannot be accepted. It is the contention raised by the learned counsel appearing for the appellants that, Ex.D1 is a registered Will dated 20.11.1996, executed by Kotrappa in favour of defendant No.1 and in order to prove the Will the defendants have examined the one of the witnesses to the Will as DW2, who deposed about the due execution of the Will and therefore, the finding recorded by both the courts below requires interference in this appeal. Hence, it is the argument advanced by the learned counsel appearing for the appellants that, the finding recorded by both the courts below are contrary to factual aspects on record and therefore, sought for allowing the appeal.
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10. Sri. N.P. Vivek Mehta, learned counsel for the respondent No.2 submits that father of Kotrappa and Erappa had sold the house property in favour of Yellappa Venkappa Ekabote as per registered Sale Deed dated 01.05.1946 which is nominal Sale Deed and thereafter, loan was repaid and in turn, the said property was got back to the family of Channabasappa and therefore, the Sale Deed was executed in favour of Kotrappa on 24.06.1972, being a manager of the joint family and therefore, he sought to justify the impugned judgment and decree passed by the courts below.
11. Sri. Avinash Banakar, learned counsel appearing for the respondents/plaintiffs sought to justify the impugned judgment and decree passed by the courts below and argued that, the there is no severance of joint family amongst Channabasappa and his three children and also after the death of Channabasappa,
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 the joint family was continued therein and in this regard, he invited the attention of the court to the deposition of DW1 and DW2 and argued that, joint family was continued even as on the date of execution of the registered Will dated 21.11.1996 by said Kotrappa. In this regard, it is the principal submission of Sri. Aviniash Banakar, learned counsel for the respondents that, as both the courts below, based on the factual aspects on record, rightly granted relief of partition and separate possession and the said finding cannot be disturbed under Section 100 of CPC and accordingly, sought for dismissal of the appeal.
12. In the light of the submission made by the learned counsel appearing for the parties and the finding recorded by both the courts below, which makes it clear that, the lis between the parties is with regard to immovable properties standing in the name of original propositus-Channabasppa and his son
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 Kotrappa. In order to understand the relationship between the parties it is appropriate to extract the Genealogical Tree of the parties:
Chanabasappa Kotrappa Irappa (Dead) Mahadevappa-Dead
-died on 12/11/2003 Parvatevva(wife)-P3 -Gouramma (wife)-P4A Ashok- P2 Nagappa Channabasappa Shanmukh-P1 Prakash-P4B Ashok-P4C (Dead) (Dead) Jayamma-P5 Annapurnamma(wife) Chidanand Malatesh Prabhu Nijaguneppa D1 D2 D3 D4 D5
13. On careful perusal of the Genealogical Tree would indicate that original propositus-Channabasappa had three sons namely, Kotrappa, Irappa, and Mahadevappa. Kotrappa had three children namely, Nagappa (husband defendant No.1 and father of defendant Nos.2 to 5), Channabasappa (husband of plaintiff No.5) and Shanmukhappa (plaintiff No.1). The 2nd son of Channabasappa-Irappa died leaving behind
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 his wife Parvathavva, (plaintiff No.3) and son- Ashokappa (plaintiff No.2). The 3rd son of Chanabasappa-Mahadevappa, died leaving behind his wife Gowramma (plaintiff No.4(A)) and two children namely, Prakash (plaintiff No.4(B)) and Ashok (Plaintiff No.4(C)). It is the case of the plaintiffs that, the suit schedule properties are the joint and ancestral properties of plaintiffs and defendants and there was no severance of jointness in the suit schedule properties as the plaintiffs and defendants were residing together in the same house. In this regard, learned counsel appearing for the appellants denied the same. Hence, I have carefully examined the evidence of DW2, who deposed that, in the house property bearing CTS No.1591, plaintiff No.2 to 4 are residing along with the defendants. It is also admitted by DW2, that, DW1 was actively participated during the execution of the registered Will dated 20.11.1996.
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 DW2 further deposed that, at the relevant point of time, the testator-Kotrappa suffered an injury to leg and it was deposed that, the plaintiffs and defendants were residing together. Therefore, I am of the opinion that, the defendant No.1 has failed to prove that there is severance of joint family between the plaintiffs and defendants.
14. Insofar as the execution of registration of Will dated 20.11.1996, (Ex.D1) is concerned, I have carefully examined the evidence of DW1 and DW2, wherein both the witnesses have deposed that at the time of execution of the registered Will, DW1 (defendant No.1) has participated during the due execution of the registered Will. DW1 deposed as follows:
"D ªÀÄÈvÀÄå¥ÀvÀæ §gÉzÀÄPÉÆlÖ ªÀiÁ¼ÀV ªÀÄ£ÉAiÀÄ°è 2 ºÁUÀÆ 3 ªÀÄvÀÄÛ 4£Éà ªÁ¢AiÀÄgÀÄ ªÁ¸ÀªÁVzÁÝgÉ. "
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15. The said aspect of the matter makes it clear that, defendants, being propounder of the Will have failed to remove the suspicious circumstances with regard to due execution of the Will dated 20.11.1996 (Ex.D1). It is also to be noted that the parties were residing together under the same roof and therefore, as there is no severance of jointness of plaintiffs and defendants, and therefore, the finding recorded by both the courts below requires to be confirmed in this appeal. In this regard, it is relevant to extract the observation made by the Hon'ble Supreme Court in the case of Murthy and others vs. C. Saradambal and others reported in (2022) 3 SCC 209, wherein at paragraphs 31 to 39 it is held as under:
31. One of the celebrated decisions of this Court on proof of a will, in the case of H.Venkatachala Iyenger vs. B.N.Thimmajamma, wherein this 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:-
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 "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 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
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 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 would be the usual test of the satisfaction of the prudent mind in such matters."
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32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian 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.
33. In the above noted case, this Court has stated that the following three aspects must be proved by a propounder:-
"16...(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 other
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur and others, this 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 adversarial 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 would 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 circumstance surrounding the making of the will.
35. In Bharpur Singh and others v. Shamsher Singh, this 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."
36. It was further observed that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a 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
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 would not mean that the statutory requirements of proving the will need not be complied with.
37. In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, this Court has observed as under:-
"34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstance
(iii) Where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Courts in B.Venkatamuni v. C.J. Ayodhya Ram Singh, wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
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36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."
38. This Court in Anil Kak v. Sharada Raje, held as under:-
"20. This Court in Anil Kak v. Sharada Raje opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding:
52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
39. Similarly, in Leela Rajagopal and others v.Kamala Menon Cocharan and others, this Court opined as under:-
"13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
16. It is also relevant to cite the judgment of the Hon'ble Supreme Court in the case of Kavita Kanwar Vs. Mrs. Pamela Mehta and Others reported in AIR 2020 SC 2614, wherein at paragraphs 20(4) to 20(6) it is held as under:
20.4. The learned counsel has relied on the decisions of this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. : (2006) 13 SCC 449; H. Ventakachala Iyengar; and Rani Purnima Debi (supra) amongst others, to submit that the Probate Court can investigate into the matter of a Will despite the fact that the signature found thereon has been proved or ingredients of Section 68 of the Evidence Act has been
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 complied with. The learned counsel has referred to the definition of the expression "suspicion" in P. Ramanatha Aiyar's Advanced Law Lexicon and has also relied upon the decision in Indu Bala (supra) to submit that suspicion permits the Court to realistically imagine any doubtful or distrustful facet of a case; and in testamentary jurisdiction, the Courts are permitted to ferret out doubtful circumstances, which cannot be described as conjecture or surmise. 20.5. The learned counsel has again recounted various circumstances, including manner of making of the Will and contradictions/inconsistencies in the statements of the witnesses examined by the appellant, which have been taken into account in the impugned judgments and have also been referred by the learned counsel for the respondent No. 2; which need not be repeated. The learned counsel has also placed before us a flow chart reflecting thirteen aspects of findings, including those of suspicious circumstances, which have been returned concurrently against the appellant and has contended that no case for interference with such concurrent findings is made out. The counsel has additionally relied on the decision in Apoline D'Souza v. John D'Souza: AIR 2007 SC 2219.
20.6. In another line of arguments, learned counsel for the respondent No. 1 has contended that the Will in question cannot have greater sanctity only because
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 the opening and closing parts are handwritten; rather it is strange that the testatrix chose not to write the main bequest by hand and then, the handwritten portion of the Will in question is placed in a squeezed manner and is not attested by any witness. The learned counsel would submit that such interlineations only go to show that additions have been made in the Will subsequent to its execution and failure to assign the reason behind such a course is fatal to the case put up by the propounder. The learned counsel has relied on the decision in Dayananadi v. Rukma D. Suvarna & Ors.: (2012) 1 SCC 510 in support of these contentions."
17. Following the declaration of law made by the Hon'ble Supreme Court, in the aforementioned judgments, it is evident that, DW1 took prominent role in the execution of the registered Will, in which defendant No.1 received substantial benefit by itself is be treated as suspicious circumstance, as defendant No.1 was attending the due execution of the Will and therefore, defendant No.1 being the propounder of the Will, failed to remove the said suspicion by clear and satisfactory evidence. Therefore, both the courts
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NC: 2025:KHC-D:4340 RSA No. 100036 of 2016 below have rightly decreed the suit holding that plaintiffs are entitled for share in the suit schedule property. Therefore, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, Regular Second Appeal is liable to be dismissed. Since, the defendants/appellants have not a made out ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, Regular Second Appeal is dismissed at the Admission stage itself.
Sd/-
(E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 26