Karnataka High Court
Savitri W/O Bapuji Chanal vs Adiveppa S/O Dyavappa Katageri By Lrs on 22 April, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF APRIL, 2022
BEFORE
HON'BLE JUSTICE RAVI V.HOSMANI
R.F.A. NO. 3070 OF 2009 (DEC & P.INJ.)
BETWEEN
1. SAVITRI W/O BAPU CHANNAL,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
PRESENT R/O 81A/15D 'SUPRABHATA',
MICHIGAN COMPOUND, SAPTAPUR,
DHARWAD-580 001.
2. SANJAY S/O BAPU CHANNAL,
AGE: 25 YEARS,
OCC: ADVOCATE,
PRESENT R/O.81A/15D, 'SUPRABHATA',
MICHIGAN COMPOUND, SAPTHAPUR,
DHARWAD-580 001.
...APPELLANTS
(BY SRI S.S.PATIL AND SRI H.N.GULARADDI, ADVOCATES)
AND
ADIVEPPA
S/O DYAVAPPA KATAGERI,
SINCE DECEASED BY HIS LR'S
1. CHINAVVA W/O HANAMANTHGOUDA PATIL
AGE ABOUT 59 YEARS,
2
OCC: HOUSEHOLD WORK,
R/O.BUILDING NO.6, 402,
NEELAM NAGAR,
MULAND EAST MUMBAI-81.
2. SMT.SUDHA,
W/O DR.MUKUND BATTAL,
AGE: ABOUT 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NEAR WATER TANK,
GOKUL ROAD, HUBLI,
DIST: DHARWAD -580001.
3. SMT.KAMALA,
W/O BABUGOUDA PATIL,
OCC: HOUSEHOLD AND ADVOCATE,
R/O HOUSE NO.399,
UPPER PALACE SADASHIVANAGAR,
(NEAR LAST BUS STOP),
BENGALURU -560080.
4. SMT.SHEELA,
W/O DR.VENKAPPA DESAI,
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O. FLAT NO.37, 2ND FLOOR,
DATTA GURU MARGA VASHI GAON
SECTOR 31
NAVI MUMBAI - 400 073.
SMT.SANGEETA,
W/O. SUNIL KSHIRASAGAR,
SINCE DECEASED BY HER LR'S
5. SUNIL S/O GAJANAN KSHIRASAGAR,
AGE: 50 YEARS, OCC: BUSINESS,
R/O.12A/11, TAK SHILA MAHAKALI
KAGE ROAD ANDHERI EAST,
3
MUMBAI - 400 093,
STATE: MAHARASHTRA.
6. SHIVANAND,
S/O SUNIL KSHIRASAGAR,
AGE: 15 YEARS
OCC: STUDENT,
SINCE MINOR REP. BY GUARDIAN
FATHER I.E. RES.NO.5.
7. SMT.ANITHA,
W/O PARESH DAS,
AGE: 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O G-BUILDING BLOCK NO.20
ABEKAR NAGAR, PAREL TANK ROAD,
PAREL MUMBAI 400 012.
8. DR.GIRISH,
S/O ADIVEPPA KATAGERI,
AGE: 47 YEARS
OCC: DOCTOR,
R/O. NO.42, KELUSAKAR ROAD
BALA MOHAN VIDYAMANDIR
SHIVAJI PARK, DADAR,
MUMBAI -400028.
. . .RESPONDENTS
(BY SRIYUTHS SRINIVAS, S.B.MUTTALLI, RAJU M. AND
M.S.NIMBANNAVAR, ADVOCATES FOR R1 TO R8;
R6 MINOR REPRESENTED BY R5)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
AND READ WITH ORDER 41 RULE 1 OF C.P.C., AGAINST THE
JUDGMENT AND DECREE DATED 20-10-2009 PASSED IN
O.S.NO.153/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DN), BAGALKOT, DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
4
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.12.2021, THIS DAY, THE COURT, PRONOUNCED
THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 20.10.2009 passed by Principal Civil Judge (Sr.Dn.), Bagalkot in O.S.No.153/2002, this appeal is filed by defendants.
2. Appellants herein were defendants no.1 and 2 in original suit, while respondents herein were plaintiffs. For sake of convenience, parties will hereinafter be referred to as per their ranks in the suit.
3. O.S.no.153/2002 was filed seeking for decree of declaration that deceased Adiveppa S/o Dyavappa Katageri succeeded to 'B' schedule properties not only as per last Will of Smt.Laxmavva but also under common rule of succession in Hindu Succession Act, and after his demise plaintiff and defendant no.1 succeeded to 'B' schedule properties. Plaintiff also sought for decree of permanent injunction restraining 5 defendants from interfering with peaceful possession and enjoyment of 'B' schedule properties.
4. The lands bearing Sy.No.109/1B measuring 4 acres 4 guntas and Sy.No.109/1A measuring 4 acres 20 guntas situated at Benakatti; Sy.No.535 measuring 20 acres 34 guntas, Sy.No.534/1 measuring 8 acres 3 guntas and Sy.No.534/2+3A measuring 7 acres 36 guntas situated at Shirur village; Sy.No.298/1 measuring 8 acres 24 guntas situated at Hallur and 6 house properties bearing VPC nos. 861 to 866 situated at Benakatti village comprised 'B' schedule properties (hereinafter referred to as suit properties, 'for short').
5. In the plaint, it was stated that Smt.Chinnavva sister of Dyavappa died in 1949. She had a son Sri.Lenkanagouda. Sri.Dyavappa died in 1930, while his wife Smt.Doddavva died in 1963. They had three children namely Smt.Laxmavva, Smt.Bheemavva and Sri.Adiveppa. 6 Sri.Adiveppa in turn had seven daughters and one son. Smt.Savitri, fifth daughter is defendant no.1 and defendant no.2 is her son.
6. It was stated that at the time of death of plaintiff's father Sri.Dyavappa in 1930, his children were minors. Therefore, he appointed his sister's son Sri.Lenkanagouda as trustee of family. As Lenkanagouda himself did not have children, he bequeathed his properties to plaintiff. During his lifetime, he also executed registered gift deed in respect of R.S.No.535 of Shirur village measuring 20 acres 34 guntas in favour of plaintiff. After completing his education at Bombay, plaintiff joined Bombay Education Services and retired as Principal of Siddam College in 1984. He often visited Benakatti village, lived with his sister who was managing properties of plaintiff's parents as well as her own.
7. It was further stated that Smt.Laxmavva had executed a Will dated 19.03.2001 when she was in sound 7 disposing state of mind, cancelling earlier Will executed in 1996 bequeathing properties to defendants, on the ground that she was misled. In her last Will she stated that defendant no.1 was educated and brought up by plaintiff at Bombay and in 1981, married Sri. Bapusaheb Chanal, an advocate who later joined judicial services. It was stated that after marriage, she was residing with her husband. It was further stated that under normal circumstances, original Will ought to have been with testator. However, defendant no.1 had managed to take it away from her. Therefore, in consultation with elders, she decided to cancel that 'Will' and execute later Will and got it registered on 19.03.2001. It was stated that plaintiff was only heir to both his father as well as father's sister Smt.Laxmavva under provisions of Hindu Succession Act.
8. It was further stated that after finding Will from trunk belonging to testatrix, plaintiff got his name entered in village records in respect of panchayat properties. Insofar as agricultural lands, Tahsildar issued endorsement stating that 8 application for mutation was also filed by defendant no.2 claiming succession under Will and revenue authorities were not competent to decide disputed succession under Will. This was cause of action for filing suit.
9. Upon service of suit summons defendants filed written statement, denying plaint averments as false. It was stated that suit was not maintainable as there was suppression of material facts and plaintiff had not approached Court with clean hands. Genealogy in schedule 'A' of plaint was denied, but relationship of plaintiff with defendants and deceased Smt.Laxmavva was admitted. It was contended that all legal heirs of Sri. Lenkanagouda were not impleaded. It was contended that registered gift deed executed by Sri. Lenkanagouda was not acted upon as possession was not delivered. Averments regarding defendant no.1 snatching away Will etc., were denied. It was specifically stated that Smt.Laxmavva was very old and suffering from asthma and hypertension and was weak both physically and mentally, 9 unable to move independently from one place to another. She was also susceptible to sudden anger, rage, likes and dislikes and was incapable of understanding. She was not in sound disposing state of mind when alleged last Will was alleged to have been executed. It was therefore created, concocted, bogus and suspicious.
10. It was further stated that due to advanced age of 85 years, Smt.Laxmavva's mental equilibrium was affected to considerable extent, there was neither occasion nor necessity to execute alleged Will dated 19.03.2001 cancelling earlier Will dated 26.08.1996. It was alleged that in collusion with attesting witnesses and interested persons, plaintiff had concocted said Will with malafide intention. It was further stated that plaintiff was holding extent of about 25 acres in excess of ceiling on holding, when Karnataka Land Reforms Act came into force. Therefore, it was improbable that Smt.Laxmavva could have bequeathed properties in favour of plaintiff, that too when he was already 79 years of age and 10 was suffering various diseases. It was alleged that after death of testatrix, defendant had filed application for mutation of their names in panchayat records, but plaintiff had illegally got his name entered.
11. It was stated that plaintiff had seven daughters and one son namely Smt.Chinnavva, Smt.Sudha, Smt.Kamala, Smt.Sheela, Smt.Savitri (defendant no.1), Sri.Girish, Smt.Sangeetha and Smt.Amita. All of them, except defendant no.1 were educated by plaintiff. It was stated that defendant no.1 had learnt from her mother Smt.Nagavva, late Sri. Lenkanagouda and deceased Smt.Laxmavva, that plaintiff had attempted to strangulate defendant no.1, when she was just nine day's old baby, as male child was not born. After foiling such attempt, Sri. Lenkanagouda and Smt.Laxmavva had promised him that they would adopt defendant no.1 and declared so on same day. Thereafter they nurtured and brought up defendant no.1 as their own daughter. Though they requested plaintiff to give her in adoption, after birth of 11 male child Sri.Girish, it was declined with ulterior motive of grabbing all properties belonging to them.
12. It was further stated that all relatives and people of Benakatti treated defendant no.1 as foster child of Sri. Lenkanagouda and Smt.Laxmavva. It was further stated that defendant no.1 was staying with them all along and continuously looking after them and assisting them in cultivation of landed properties. That she studied upon VIII std. at Benakatti and on 29.10.1980, they got her married to Sri. Bapuji T. Chanal. Even after marriage, she was frequently visiting and living with them. Sri. Lenkanagouda and Smt.Laxmavva had love and affection and full confidence in defendant no.1. He had also told Smt.Laxmavva that she should give all properties to defendants and she had promised him to make a Will bequeathing all properties to defendants. Accordingly she had executed registered Will on 26.08.1996, bequeathing 'B' schedule properties to defendants. Thereafter during February, 2000, she handed over Will with postal 12 envelope to defendant no.1, in presence of well-wishers. Smt.Laxmavva passed away on 30.03.2002 while taking treatment at Kerudi Nursing Home, Bagalkot. Upon her death, defendants became owners in terms of Will dated 26.08.1996 and alleged that plaintiff was falsely claiming title on basis of concocted Will dated 19.03.2001 and was obstructing defendants' possession and enjoyment.
13. Based on pleadings, trial Court framed following issues:
1. Whether plaintiff proves genealogy as shown in suit schedule 'A'?
2. Whether plaintiff further proves that deceased Laxmavva in a sound state of mind executed last Will dated 19.03.2001 and also had revoked Will dated 26.9.1996 executed in favour of defendants?
3. Whether plaintiff proves that he succeeded to suit 'B' schedule properties not only under last will of Laxmava dtd.19.03.2001, but also under common rules of succession under Hindu Succession Act?13
4. Whether defendants prove that after death of Laxmavva on 30.3.2002 they acquired ownership and also in possession of suit properties on basis of registered will deed dtd.26.9.1996 executed by Laxmavva?
5. Whether plaintiff is entitled for reliefs as prayed in suit?
6. To what order or decree?
14. During pendency of suit plaintiff died, his legal representatives were brought on record as plaintiffs no.1A to 1G. Subsequently, plaintiff no.1E also died and legal representatives were brought on record as plaintiffs no.1E-1 and 1E-2. In order to establish their case, plaintiff no.1G was examined as PW-1. Three more witnesses were examined as PW-2 to 4 and exhibits P.1 to P.19 were marked. On behalf of defendants, defendant no.1 was examined as DW-1 and exhibits D.1 to D.6 were marked.
14
15. On consideration, trial Court answered issues no.1 to 3 and 5 in affirmative, issue no.4 in negative and issue no.6 by decreeing suit. Aggrieved thereby defendants are in appeal.
16. Sri. S.S.Patil, learned counsel for defendants- appellants submitted that impugned judgment and decree passed by trial court was perverse, capricious and opposed to law. It was contended that proper issue regarding validity of Will dated 19.03.2001 was not framed even though defendants clearly contended that it was false and fabricated. It was contended that there was no proper appreciation of pleadings and evidence of parties and clear admissions of PWs-1 to 4, and in fact deposition of PW-3 hostile to their case was ignored. And that there was improper consideration of ratio of decisions cited.
17. It was contended that PW-2, scribe of Will deposed that prior to writing Ex.P.1, he did not verify identity of testatrix and witnesses. He admitted that he had not 15 maintained any register about drafting and he did not know age of testatrix. PW-3 admitted that contents of Will were not explained to testatrix. And PW-3 admitted that Ex.P.1 was written by PW-2, as per information given by plaintiff- Adiveppa. It was contended that mandatory requirements for proving Will were not complied and trial Court failed to notice that thumb impression of testatrix was not affixed on all pages of Ex.P.1 and as deposed by PW-3, Sri.Adiveppa was an influential person wielding power over witnesses. It was also contended that Ex.P.1 suffered from insurmountable suspicious circumstances which were ignored. It also failed to note that testatrix was looked after by defendant no.1, who was treated by testatrix as daughter and plaintiffs were residing at far away place.
18. Learned counsel further contended that plaintiff was already holding 11 acres of land in excess of ceiling and bequeathal would be in vain. It was further contended that plaintiff was 76 years old and suffering from several ailments 16 and therefore bequeathal in favour of plaintiff would have been abnormal and unnatural. In support of his submissions, learned counsel relied upon following decisions:
i. Girija Datt Singh Vs. Gangotru Datt Singh reported in AIR 1955 SC 346 for proposition that propounder of Will has to prove due attestation by two attestors, who saw testator sign Will and they had signed it in presence of testator.
ii. Shashi Kumar Banerjee & Others Vs. Subodh Kumar Banerjee since deceased by LRs and others reported in AIR 1965 SC 529 for proposition that onus of proving Will and explaining suspicious circumstances to satisfaction of Court would be on propounder even where there are no such pleas but circumstances give rise to doubts.
iii. Bharpur Singh and others Vs. Shamsher Singh reported in AIR 2009 SC 1766 wherein Hon'ble Supreme Court enlisted various suspicious circumstances including propounder 17 taking prominent part in execution of Will, which existed in present case.
iv. Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in (2003) 2 SCC 91 for proposition, where only one of attesting witnesses was examined and he did not state about Will being attested by another, examination of scribe would not satisfy requirements of Section 68 of Evidence Act.
19. On above grounds, learned counsel sought for allowing appeal and reversing judgment and decree.
20. On other hand, Sri.Srinivas and S.B. Muttali, Raju M. and M.S. Nimbannavar, learned for plaintiffs supported impugned judgment and opposed appeal. It was submitted that in case of hand, claims are based on two Wills in respect of same properties and as per Section 62, later Will would prevail over earlier. It was contended that plaintiffs had duly established their claims under Ex.P.1-Will. PW-3 examined as attestor of Will clearly admitted his signature and also that of 18 testatrix which would satisfy requirements of law. Mere denial of signature of other attestor that too on ground that it is English which is not known to him, would not take away weight of his deposition insofar as attestation of Will.
21. Learned counsel further submitted that Section 63 prescribes signature of testator while Section 68 requires examination of at least one of attestor. In the case on hand, as stated by PW-3, other attestor had died and therefore requirements of law were met by examination of PW-3 alone. Trial Court had rightly decreed suit based on principles enunciated under Section 70 of Evidence Act. It was further submitted that no specific issue was framed regarding undue influence and no evidence was led to establish the same. Therefore, decree passed by trial Court relying upon Ex.P.1 - Will was justified. It was lastly contended that for proof of Will, test to be applied is that of a prudent mind and requirement of explanation regarding all suspicious circumstances was not 19 required. In support of his submissions learned counsel relied upon following decisions:
1. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others reported in AIR 1959 SC 443 for proposition that a Will has to be proved like any other document that has to be applied being usual test of satisfaction of prudent mind in such matters and one cannot insist on proof with mathematical certainty. Said decision was also relied upon for proposition that Section 63 of Succession Act requires a Will to be attested and cannot be used as evidence until at least one attesting witness has been called for proving its execution. Reliance was also placed on decision in Gopal Swaroop Vs. Krishna Murari Mangal and others reported in (2010) 14 SCC 266 for same proposition.
2. Mrs. Joyce Primrose Prestor (Nee Vas) Vs. Ms. Vera Marie Vas and others reported in 1996 (9) SCC 324 for proposition that there was a strong 20 presumption of regularity and due execution and attestation of holograph Will when writing of Will and signature of testator were not disputed.
3. Madhukar D. Shende Vs. Tarabai Aba Shedage reported in (2002) 2 SCC 85 for proposition that Will cannot be doubted on ground of complete absence of medical evidence of doctor to establish that testator was in a sound and disposing state of mind as said requirement was not mandated by any rule of law or of evidence.
4. Daulat Ram and others Vs. Sodha and others reported in (2005) 1 SCC 40 for proposition that where no issue was framed on this point despite plea taken in written statement, burden to prove suspicious circumstances or that Will was forged or obtained under undue influence or coercion or by fraud was on person alleged it to be so and on failure to lead evidence on those points, finding that second Will was proved as genuine did not call for any interference.21
5. V. Kalyanaswamy (D) by LRs and another Vs. L. Bakhtavatsalam (D) by LR and others reported in (2020) SCC OnLine SC 584 for proposition that in a case covered under Section 69 of Evidence Act what is to be proved is attestation by at least one attesting witness. Proof of attestation by two witnesses required under Section 68 would not be required in cases falling under Section 69 where Court is required to apply its mind and find whether requirements of Section 69 are proved. Said decision was also relied upon for proposition that a person afflicted with physical illness or that he was in excruciating pain would not deprive him of his capacity to make a Will and that physical well being was not to be confused with sound disposing capacity.
22. Based on above submissions, learned counsel sought for dismissal of appeal.
22
23. Heard learned counsel, perused impugned judgment and decree and record.
24. From above, title of testator in respect of bequeathed properties, is not in dispute. In fact, both parties are claiming title under separate Wills stated to be executed by very same testatrix. While plaintiff's claim is under Exhibit P.1 dated 19.03.2001, defendants' claim is under Exhibit D.1 - Will dated 26.08.1996. While plaintiffs allege that by executing Ex.P.1 - Will, testatrix had cancelled earlier Will dated 26.08.1996, defendants allege that Ex.P.1 - Will was concocted.
25. While passing decree, trial Court proceeded on an assumption that both parties admit existence of both Wills. On reading recitals of Ex.P.1, it held that while executing Ex.P.1 - Will, testatrix revoked earlier Will. Referring to Ex.P.17 and P.18 - Trust deed and Gift deed executed by Smt.Doddavva Katageri and Sri.Lenkanagouda, it concluded that 23 documentary evidence indicated that Ex.P.2 was revoked. It observed that though defendants contended Ex.P.1 was bogus, concocted, they did not lead evidence to establish same. Trial Court also held that merely on basis of admissions firstly, from PW-1 that he had participated in drafting of plaint; secondly, from PW-2 that he had failed to maintain register about deeds drafted by him and about not knowing age of testator; thirdly from PW-3 that he had refused to sign examination-in-chief affidavit outside court, that he was standing outside when LTM of testatrix was obtained inside Sub-Registrar's office and that Sri. Adiveppa, original plaintiff was an influential person had influenced him to sign on Ex.P1
- Will and fourthly, from PW-4 about having been jailed etc., were minor omissions not affecting legality of Ex.P.1 - Will. Trial Court also concluded that evidence of defendants was insufficient to substantiate their contention that Ex.P.1 - Will was concocted or obtained under undue influence. Trial Court held that decisions relied upon by defendants in Kannian and 24 another Vs. Sethurama reported in AIR 2000 SC 3522, Janki Naraya Bhoir (supra), Yumnam Ongbi Tampha Ibemma Devi Vs. Yumnam Joykumar Singh and others reported in 2009 SAR (Civil) 624, Apoline D'souza Vs. John D'souza reported in (2007) 7 SCC 225, Madhukar D. Shende (supra) would not apply to facts of this case and proceeded to decree the suit.
26. In view of findings of trial Court and grounds urged, points that arise for my consideration in this appeal are:
1. Whether trial Court was justified in holding that plaintiffs had succeeded in establishing due execution of Ex.P.1 -
Will?
2. Whether Ex.P.1 - Will is invalid being shrouded in suspicious circumstances?
3. And whether judgment and decree passed by trial Court calls for interference?
27. Admittedly both parties are resting their claims on the basis of registered Wills. Before embarking upon 25 considering claims, brief reference to provisions of law governing Wills would be helpful.
• Section 59 of Indian Succession Act provides that every person of sound mind not being a minor may dispose of his property by Will.
• Section 61 of Indian Succession Act stipulates that a Will or any part thereof obtained by fraud, coercion or any such act which affects freedom of testator to bequeath as void.
• Section 62 of Indian Succession Act empowers revocation of earlier Will by testator at any time when he is competent to dispose of his property by Will.
• Section 68 of Evidence Act, mandates that if a document is by law required to be attested, it cannot be used as evidence unless one attesting witness at least has been called for purpose of proving its execution.
• Section 69 of Evidence Act stipulates that if no attesting witness can be found, it 26 must be proved that attestation of one of attesting witness at least is in his handwriting and that signature of person executing document is in handwriting of that person.
• Section 71 of Evidence Act provides for proof of document by other evidence, if attesting witness denies or does not recollect execution of documents.
• Section 3 of Transfer of Property Act mandates that a Will be attested by at least two attestors.
28. In instant case there is no serious dispute about mental capacity of testatrix to execute Wills. While plaintiffs allege that by executing Ex.P.1 - Will, testatrix cancelled earlier Will - Ex.P.2 on ground that earlier Will was obtained by fraud, coercion and undue influence, defendants allege that Ex.P.1 - Will was vitiated by fraud, coercion concoction etc.
29. To establish their case, plaintiffs examined plaintiff no.1G as PW-1, as original plaintiff had died during pendency 27 of suit. In examination-in-chief, he repeated plaint averments. During cross-examination he admitted that defendant no.1 was his elder sister who studied upto VIII Std. in Benakatti school. He admitted that all children had their education in Mumbai. But denies suggestion that defendant no.1 lived with testatrix at Benakatti as her foster child. He admitted that testatrix executed Will on 26.08.1996 in favour of defendants, but states that it was later cancelled. PW-1 also admits that earlier Will was not executed in his presence. Though suggestions about testatrix suffering from ill health during year 2000 and succumbing to same are denied, he admits that she died during treatment. He also admits that despite gift deed at Ex.P.18, revenue entries continued in name of donors.
30. Scribe of Ex.P.1 - Sri. Arvind Kulkarni is examined as PW-2. He is a deed writer. He admits that Ex.P.1 was written in his handwriting. That on 19.03.2001 testatrix came to him and expressed desire to bequeath her properties namely two lands of Benakatti and two lands of Shirur village 28 to her younger brother Sri. Adiveppa. As per her instructions, he obtained stamp papers and prepared Will. He states that at that time along with testatrix, Sri. Goudappa Chittaragi and Sri.Rudraganti were also present and contents of Will were read over in their presence. After affirming contents, testatrix signed it followed by witnesses. PW-2 further states that testatrix was hale and healthy at that time and executed Will in sound disposing mind. During his cross-examination he admitted that he did not maintain register about documents drafted by him, though it was prescribed. He admits that it was not possible for him to know age of testatrix, without referring to documents. Specific suggestion that Sri.Adiveppa had called him to Benakatti for writing Will is denied. He also denies that Will was written as per instructions of Sri. Adiveppa. He admits that he had not gone to office of Sub- Registrar for registration of Will.
31. One of attestors Sri.Goudappa Chittaragi was examined as PW-3. He deposed that he was permanent 29 resident of Benakatti village and acquainted with plaintiffs and defendants. He deposed that on 19.03.2001, Smt.Laxmavva had called him to her house and expressed desire to bequeath her properties to her brother Sri. Adiveppa. At that time, Sri.Rudraganti was also present. Thereafter, all three of them went to Sub-Registrar's office in Bagalkot, contacted Sri. Arvind Kulkarni and testatrix paid money for purchasing stamp papers. After drafting Will as per her instructions, it was read over. On affirmation she affixed her thumb impression on it. Thereafter, he and Sri.Rudraganti signed on Will and got it registered with Sub-Registrar. PW-3 further stated that testatrix was in sound disposing mind.
32. He further stated that Smt.Laxmavva and Sri. Adiveppa took them to Bagalkot and asked him to sign on document with Sri. Arvind Kulkarni and accordingly he affixed his signature. Though he admitted presence of Sri.Rudraganti, he stated that he was unable to identify his signature as it was in English which he was unaware of. PW-3 identified thumb 30 impression of testatrix on Ex.P.1. He deposed that he was not aware of discussion between testatrix and Sri. Adiveppa. He states that though he went to Sub Registrar's office, he signed Ex.P.1 outside Sub Registrar's office. In his cross- examination, he stated that he had refused to sign on examination-in-chief affidavit. Though contents were read over to him, he did not understand them clearly. He admits that Will was written as per instructions of Sri. Adiveppa. Testatrix was inside the car and Sri. Arvind Kulkarni took her signature there itself. To a specific suggestion that scribe did not read over contents of Will to testatrix, witness answers that he was unaware. He admits that he was unaware whether testatrix affixed her thumb impression before Sub-Registrar. He admits that Sri. Adiveppa was an influential person of village and both himself and Sri.Rudraganti were obedient to him. He admits that during year 2001, PW-3 and Sri.Rudraganti were asked to come to Bagalkot by Sri. Adiveppa. He admits that during year 2001 testatrix was 31 suffering from asthma. It is also elicited that Will was prepared by Sri. Adiveppa and Sri. Arvind Kulkarni. To a suggestion that thumb impression of testatrix was not taken in his presence, PW-3 states that he was outside car.
33. Insofar as Ex.P.2, PW-3 states that he was witness to said Will also and identifies his signature. He also identifies signatures of Sri. Hanumappa Yedahalli - other attestor and of testatrix. He admits that during lifetime of testatrix, defendant no.1 used to visit village and managed lands. He admits that testatrix affixed her thumb impression in his presence. He answered as being unaware, to a specific suggestion that defendants no.1 and 2 were in possession of suit properties as per Ex.P.2 - Will. He admits that since seven years, he was residing in Bagalkot and when he visited Benakatti, Sri. Adiveppa had asked him to accompany him. PW-3 reiterates that he and other witness signed on Will in year 2001 on authoritative instructions of Sri.Adiveppa. Witness once again 32 admits that he had refused to sign examination-in-chief affidavit except in front of Court.
34. Sri.Ramachandrappa, S/o. Adiveppa Sannappanavar, a resident of Benakatti village aged 65 years was examined as PW-4. In his examination-in-chief, he stated that he was a permanent resident of Benakatti village and was acquainted with plaintiff and defendants and also affairs of family. He stated that after death of Smt.Laxmavva's husband Sri. Lenkanagouda, Sri. Adiveppa was taking care of her and she had affection towards Sri. Adiveppa. He further stated that defendant no.1 was not residing at Benakatti and had never taken care of Smt.Laxmavva. He further stated that defendant had obtained a Will from testatrix by misleading her which was later cancelled by bequeathing properties to Sri. Adiveppa. PW-4 further stated that after death of testatrix plaintiff no.1G was in possession of suit property. He stated that he was not aware of Will executed by testatrix in favour of defendants but was aware of Will executed in favour of plaintiffs. 33
35. Defendant no.1 deposed as DW-1. She stated that claim of gift deed executed in favour of plaintiff was false and gift deed was not valid as possession continued with testatrix and alleged gift deed was not acted upon. She denied suggestion that Ex.P.1-Will was executed in consultation with village elders or executed voluntarily. She deposed that testatrix was very old and unable to move independently and she was not mentally fit and in sound disposing state of mind. Therefore, alleged Will dated 19.03.2001 was concocted, bogus and suspicious. DW-1 further stated that she learnt from her mother Smt.Nagavva, Sri. Lenkanagouda and Smt.Laxmavva that when she was nine days old baby, original plaintiff Sri.Adiveppa had attempted to strangulate her as male child was not born. At that time, Sri.Lenkanagouda and Smt.Laxmavva had intervened and foiled attempt promising Sri. Adiveppa that they would adopt girl child as their daughter. Thereafter, she was nurtured by them. After birth of PW-1 - Girish, though Sri.Lenkanagouda and Smt.Laxmavva 34 sought to adopt her, plaintiff postponed same on one pretext or other.
36. She further deposed that she was staying with Sri. Lenkanagouda and Smt.Laxmavva and assisting them in cultivation of suit properties. As they had great affection towards her, testatrix executed registered Will on 26.08.1996 bequeathing suit properties in her favour by a registered Will. During February 2000, testatrix handed over Will with envelope in presence of well-wishers and therefore could not have cancelled Will. DW-1 alleged that Will dated 19.03.2001 was obtained by fraud, coercion and undue influence. She further deposed that after death of testatrix she was managing properties but was obstructed by plaintiffs. During cross-examination it is elicited that genealogy was not produced. Details of suit properties etc., were elicited. She denies execution of gift deed by Sri. Lenkanagouda in favour of plaintiff in the year 1944. She admits that after appointment of her husband to judicial service, he served at 35 various places and she resided with him at those places. Though suggestions were made that DW-1 had mislead testatrix into executing Will in 1996 and upon realizing same, she had cancelled Will and executed fresh Will in favour of plaintiff, same were denied.
37. Ex.P.1 is Will dated 19.03.2001 in which it is stated that about five years earlier, a Will was got forcibly executed and registered to effect that after death of testatrix, properties would devolve upon defendants but as they were residing in Bengaluru and Dharwad and were not taking care of testatrix, whereas plaintiff - her brother was looking after properties and taking care of her, she intended to bequeath properties only to plaintiff Sri. Adiveppa. Hence, earlier Will was cancelled. The said Will was registered on 19.03.2001. Ex.P.2 is copy of Will dated 26.08.1996. Testatrix Smt.Laxmavva then aged 81 years states that her health was declining with her age. That her husband had already died and they did not have any children but her younger brother's daughter by 36 name Smt. Savitri was fostered by her from her childhood. That Smt. Savitri was taking good care of her and with a view to avoid litigation or dispute after her death with regard to her properties, she was bequeathing same to Smt. Savitri and her son Sri.Sanjay. Said Will was registered on 26.08.1996.
38. Ex.P.3 is death certificate of testatrix indicating date of death as 30.03.2002. Ex.P.4 is endorsement dated 21.06.2002 given by Tahsildar to plaintiff and defendant no.1 to settled their dispute before Civil Court. Ex.P.5 to Ex.P.16 are copies of Record of Rights. Ex.P.17 is copy of trust deed executed by Smt.Doddavva W/o. Sri. Dyavappa Katageri stating that during his ill-health about 10 years earlier, Sri.Dyavappa had executed trust deed stating that his properties were to be taken by his daughters Smt.Laxmavva and Smt.Bheemavva and Smt.Doddavva, his first wife and Smt.Gouravva, his second wife were to receive annual maintenance from 22.07.1974 of Rs.756/- and Rs.500/- respectively. But subsequently Sri.Dyavappa recovered and 37 survived for six more years during which he begot a son Sri. Adiveppa. But as Adiveppa was minor and properties were being looked after by son-in-law of Sri. Dyavappa, trust deed was executed for managing properties till attainment of age of majority by Sri.Adiveppa and for payment of maintenance to his wives. Ex.P.18 is gift deed dated 04.11.1954 executed by Sri. Lenkanagouda to Sri.Adiveppa gifting land bearing R.S.No.535 of Shirur village. Ex.P.19 is death certificate of Sri. Adiveppa showing date of death as 26.06.2006.
39. Ex.D.1 is Will dated 26.08.1996. Ex.D.2 is copy of postal cover in which Ex.D.1 was delivered. Ex.D.3 to D.6 are copies of record of rights.
40. Perusal of two rival Wills namely Ex.P.1 and Ex.P.2 (also marked as Ex.D.1) reveal that they contain signatures of two attestors and both are registered. Since plaintiff's claim is under Ex.P.1 and it is plaintiff' case that by executing Ex.P.1, testator revoked Ex.D.1, it has to be held that plaintiffs admit 38 Ex.D.1 - Will. As per Ex.D.1, age of testatrix was 81 years. Among two attestors Sri. Hanumappa Yadahalli had died prior to commencement of trial. The other attestor Sri.Goudappa Govindappa Hattaragi was also attestor to Ex.P-1 and has clearly admitted attesting Ex.D.1 Will along with Sri.Hanumappa Yadahalli. Insofar as suspicious circumstances shrouding Ex.D.1, Will, except making a vague allegation that Ex.D.1 was obtained by undue influence, no evidence is led by plaintiffs to substantiate said contention.
41. In so far as suspicious circumstances shrouding Ex.P-1, admittedly it was executed five years after execution of earlier Will. Therefore age of testatrix would be around 86 years. Among two attestors, plaintiffs examined scribe Sri. Arvind Kulkarni as PW-2 and attestor Sri.Goudappa Govindappa Hattaragi as PW-3. As stated above, PW-2 stated that on 19.03.2001, testatrix came to him, with desire to write Will. He stated that he prepared Will as per her instructions and thereafter read it over to her in presence of Sri. Goudappa 39 Chittaragi and Sri.Rudraganti, after which she signed it followed by attestors. He stated that he did not go to Sub- Registrars office.
42. The unexplained suspicious circumstances shrouding Ex.P-1 will are that no evidence is led to establish that earlier Will was obtained by fraud or coercion or undue influence. Further, attestor to said Will is also attestor to Ex.P- 1 and would have been best person to explain the circumstances under which Ex.D.1 was executed. However no explanation is forthcoming from him. Further PW-2 was a licenced Deed Writer. When defendants are totally denying execution of Ex.P-1 Will, not only on ground that testatrix was in sound mind and body to have executed Will cancelling her earlier bequeathal, circumstances surrounding execution have to be examined carefully. While PW-2 denied suggestion that Ex.P-1 was written as per instructions of original plaintiff - Sri. Adiveppa, PW-3 stated that on 19.03.2001, testatrix had called him to her house. In presence of Sri.Rudraganti, she 40 expressed desire to bequeath her properties to Sri. Adiveppa. Thereafter, all three of them went to Sub-Registrar's office in Bagalkot, contacted Sri. Arvind Kulkarni and after drafting Will as per her instructions, being read over contents, she affixed her thumb impression on it. Thereafter, he and Sri.Rudraganti signed on Will and got it registered with Sub-Registrar. But in cross-examination, stated that testatrix and Sri.Adiveppa took them to Bagalkot and asked him to sign on document with Sri. Arvind Kulkarni. Accordingly he affixed his signature. PW-3 failed to identify signature of other attestor on ground that it was in English. Therefore, there is failure by plaintiffs to establish that Ex.P-1 is attested by two attestors.
43. In his cross-examination, PW-3 admitted twice that he had refused to sign on examination-in-chief affidavit, except before court. He also stated that though contents were read over to him, he did not understand them clearly. This admission would assume significance as he later admits that Ex.P-1 was written as per instructions of Sri. Adiveppa, 41 testatrix was inside car and Sri. Arvind Kulkarni took her signature there itself. The specific suggestion that scribe did not read over contents of Will to testatrix, he replied as being unaware. He also admits that he was unaware whether testatrix affixed her thumb impression before Sub-Registrar. He admits that Sri. Adiveppa was an influential person of village and both himself and Sri.Rudraganti were obedient to him and as such during year 2001, and Sri Adiveppa had asked him and Sri.Rudraganti to come to Bagalkot. It is also elicited that Will was prepared by Sri. Adiveppa and Sri. Arvind Kulkarni. To a suggestion that thumb impression of testatrix was not taken in his presence, PW-3 states that he was outside car. From above, it is clear that without clearly explaining contents of his affidavit evidence, PW-3 was made to depose as per instructions of plaintiffs.
44. From above admission, not only presence, but also taking prominent role in preparation of Ex.P-1 Will is established. Unexplained contradiction between deposition of 42 PW-2 and PW-3 regarding testatrix being read over content of Ex.P-1-Will, as well as non-disclosure of presence and role of beneficiary of Will in its execution, when considered in the light of facts and circumstances of this case, wherein original plaintiff was stated to have entertained hatred towards defendant no.1 immediately after her birth, not giving her in adoption to testatrix, as it would have blocked devolution of properties of testatrix by survivorship etc. assume significance. Contradictions regarding due execution and attestation remaining unexplained in light of above circumstances, would lead to conclusion that defendants successfully demonstrated doubt about due execution and attestation of Ex.P-1.
45. While passing impugned judgment and decree, trial Court has first of all proceeded on the assumption that both Wills were admitted. Labouring under such assumption, it read contents of Ex.P-1 as expressing intention to cancel earlier Will
- Ex.D.1. Referring to contents of Ex.P.17 and P.18 - Trust 43 deed and Gift deeds, it concluded that documentary evidence indicated revocation of Ex.P.2.
46. In fact contents of Ex.P-17 and P-18 are wholly irrelevant in so far as present controversy in concerned. Further admission of PW-3 about presence and role of beneficiary of Ex.P-1-Will, during entire process of preparation of Will and his overwhelming influence over both attestors, have been totally ignored by trial Court. Though plaintiffs examined PW-4 to discredit Ex.D.1-Will, during cross- examination he stated that he was not aware of any Will executed in favour of defendants, but was aware only about Will executed in favour of plaintiffs. Therefore, deposition of PW-4 to discredit Ex.D.1 would be wholly insufficient. Failure of plaintiff to admit his presence lack of explanation would entail drawing of adverse interference against plaintiff.
47. Learned counsel for respondent sought to contend that attestation by two witnesses would not be required in a 44 case falling under Section 69 of Evidence Act. Relying upon V. Kalyanaswamy (supra), it is contended that plaintiffs established attestation by examining PW-3. However, Section 69 of Evidence Act would be applicable only if none of attesting witnesses can be found and under such circumstances, it has to be proved that attestation of atleast one of witnesses is in his own handwriting. Admittedly, as PW- 3 one of attesting witnesses was not only available but also examined, Section 69 of Evidence Act would be inapplicable.
48. Indeed as held in H. Venkatachala Iyengar's case strict proof of Will cannot be insisted upon and test of satisfaction of prudent mind instead of proof with mathematical certainty would be applicable. In the instant case, when entire oral evidence of plaintiffs is considered in context, drawing up of Will on 19.03.2001 cannot be stated to be free from serious doubts. In its recent judgment in case of Dhanpat Vs. Sheo Ram (deceased) through LRs and others reported in (2020) 16 SCC 209, Hon'ble Supreme 45 Court has held in case of suspicious circumstances overall assessment cumulative effect of unusual features and circumstances surrounding the Will would weigh and not upon impact of any single feature that may be found in a Will or a singular circumstance that may appear from process leading to its execution. In view of above observation, fact that Ex.P.1
- Will was registered would not take away/overshadow impact of other circumstances.
49. In Girija Datt Singh's case, three Judges bench of Hon'ble Supreme Court has interpreted Section 63 of Indian Succession Act as stipulating attestation of Will by two or more witnesses each of whom has seen testator affix his mark to Will. Said requirement is admittedly not fulfilled in this case. Constitution Bench in Shashikumar Banerjee's case had held that onus is on propounder to explain suspicious circumstances to satisfaction of Court before Will is accepted. Said ratio is also reiterated in Bharpur Singh's case (supra). In Janki Narayan Bhoir's case, where attesting witness was 46 available but not examined adverse inference was required to be drawn. As plaintiff has failed to discharge his burden, it has to be held that there is failure of plaintiff to establish due execution of Ex.P.1.
50. In view of above discussion, I am of considered opinion that points for consideration have to be answered in favour of defendants. Hence I answer point no.1 in negative, points no.2 and 3 in the affirmative.
51. In the result, I pass following:
ORDER Appeal is allowed, impugned judgment and decree dated 20.10.2009 passed by Principal Civil Judge (Sr.Dn.), Bagalkot in O.S.No.153/2002 is set-aside, suit of plaintiffs is dismissed with costs.
Sd/-
JUDGE Bvk