Karnataka High Court
Sharanabasappa S/O Pampanna Shettar, ... vs Shivakumar S/O Basetteppa Sunkad And ... on 26 October, 2007
Equivalent citations: ILR2007KAR5160, 2008(2)KARLJ636, AIR 2008 (NOC) 559 (KAR.) = 2008 (1) AIR KAR R 224, 2008 (1) AIR KANT HCR 224, 2008 A I H C 1254, (2008) 2 ICC 55, (2008) 1 HINDULR 206, (2008) 2 KANT LJ 636, (2008) 66 ALLINDCAS 753 (KAR), (2009) 1 CIVLJ 666
Author: S.R. Bannurmath
Bench: S.R. Bannurmath, A.S. Bopanna
ORDER S.R. Bannurmath, J.
Page 2377
1. This appeal is filed by the defendants challenging the judgment and decree dated 12.9.2001 passed by the learned Civil Judge, Senior Division, Koppal in O.S. No. 56/1994 decreeing the suit of the plaintiffs.
2. The facts of the case as per the pleadings are as follows:
Sangappa Shettar of Koppal was the owner of the suit schedule properties-A to D. Schedule-A consists of lands and Schedule-B, C and D consists of shops and houses. According to the plaintiffs, all these 'A' to 'D' schedule properties were owned and possessed by the said Sangappa Shettar and it is pleaded that even though Schedule-A lands i.e., Sy.No. 631 and 632 were in the name of the wife of Sangappa Shettar by name Mahantamma the said lands belonged to Sangappa only, as the same was purchased by him and out of love and affection towards his wife, he had purchased the same nominally in her name. As such, though the name of Mahantamma appears in all relevant records, in respect of these two lands, it was the Sangappa, who was the owner, enjoying the same and Mahantamma never exercised her light or title over these lands.
3. It is not much in dispute that Sangappa Shettar and his wife Smt. Mahanthamma met with a car accident on 20.9.1994 and both died on the spot. It in also not in dispute that even though this couple had a male and female child born out of title wedlock, both children died in infancy and subsequently, they did not have any children. As such on the date of death of Sangappa and Mahanthamma, they were issue less.
4. In order to appreciate the rival contentions, it is also necessary to note the interse relationship of plaintiffs, defendants and said Sangappa and his wife, whose properties are the subject matter of the suit and the appeal.
5. Defendant No. 1 is the younger brother and defendant Nos. 2 and 3 are sisters of the deceased Sangappa. It is not in dispute that he had two more brothers by name Siddappa and Basanna, who predeceased Sangappa. Defendant No. 4 is one of the sons of said Basanna and defendant No. 5 is Page 2378 the son of defendant No. 3 Siddamma. Plaintiffs - 1 to 3 are full brothers and grand nephew of Mahantamma. In the sense, plaintiffs' mother Mahanthamma was the daughter of one Sangamma.
6. According to the plaintiffs, as Sangappa and his wife Mahantamma had no children of their own, out of love and affection, they had brought up the plaintiffs and infact, they were staying along with said Sangappa. It is the case of the plaintiffs that the marriage of the plaintiff's father was also performed by Sangappa.
7. According to the plaintiffs, Sangappa was a shrewd businessman and had flourishing commission agency, grocery and cracker business. Since, he was alone and could not manage the business affairs, he took the help of the plaintiff's father Basetteppa (P.W. 1) to run the business. It is alleged that the deceased had executed a will in the year 1974 in favour of his relatives but due to disillusion by their attitude and disbehaviour, he revoked/cancelled the will on 26.9.1990. According to the plaintiffs, the deceased Sangappa had philanthropic outlook and was a devotee of Sri Gavisiddeshwara Swamiji, Koppal. The deceased was also the Chairman of Sri Gavisiddeshwara V.V. Trust, Koppal.
8. According to the plaintiffs on 20.5.1991, Sangappa executed another will bequeathing his properties-A to D to the plaintiffs and some more to be kept for charitable purpose. It is alleged that, after the execution of the will, in pursuance of his well wishers, he gave the same in a sealed condition to his confident one Sri Bhusnoormath, Advocate - P.W.8 with instructions to open the cover after his death only in the presence of Sri Gavisiddeshwara Swamiji. According to the plaintiffs, after the sudden death of Sangappa and his wife Mahantamma, the will was opened and read over on 29.4.1994 in the presence of Sri Gavisiddeshwara Swamiji.
9. It is alleged that, after coming to know of the lost testament and will of Sangappa, in order to deprive the legitimate right of the plaintiff's under will, the defendants came together and hurriedly created a trust called Sri Sangappa Pampanna Gadagshettar Trust on 28.5.1994. It is alleged that though the trust and its objects appeared philanthropic and charitable, the same was created only with ill motive to deprive the plaintiff's from their legitimate share by the defendants as they were aware that they would not get any property of the deceased Sangappa. It is alleged that as the defendants under the shelter of the said trust were trying to evict the plaintiff's from the suit schedule properties, the plaintiffs were forced to file the present suit on 3.8.1994 praying for declaration that:
i) the trust - Sri Sangappa Pampanna Gadagshettar Trust, Koppal, created by the defendants is illegal, void and not binding on the plaintiffs;
ii) The plaintiff's be declared as joint owners of the suit schedule property-A; Similarly, plaintiff No. 1 be declared as owner of the suit schedule property-B, plaintiff No. 2 as the owner of the suit schedule property-C, plaintiff No. 3 as the owner of the suit schedule property-D as per the last will of deceased Sangappa.
Page 2379
iii) Consequently, they also prayed far injunction restraining the defendants from interfering or obstructing the plaintiffs in their respective enjoyment and possession of the suit schedule properties.
10. These contentions of the plaintiffs were disputed by the defendants. Defendant No. 1 has filed his written statement and the same was adopted by the others except defendant No. 7. The defendants pleaded that, the suit is not maintainable and hit by the provisions of Section 92 CPC., since the trust is not impleaded as a party. The main attack of the defendants was on the genuineness of the alleged will, dated 20.5.1991, created by Sangappa. It is pleaded that apart from the will prima facie being forged and created one, it also smacks the time intention or will of the deceased Sangappa. (In this regard various contentions have been raised by the defendants, which will be considered while discussing the point). It is also denied that, Sangappa had great affection towards Basetteppa - the plaintiffs' father and plaintiffs themselves. It is contended that, infact said Basetteppa was having his independent shop called Sri Karibasaveshwar Trading Company opposite to Sri Gurukrupa Stores belonging to Sangappa and they were staying in different houses. It is contended that, even though the plaintiffs admit that the deceased Sangappa had love and affection towards his wife Mahantamma, not making any provision for his wife in the alleged will creates great suspicion as to the genuineness of the will. The defendants contended that since Sangappa and his wife Mahantamma died intestate without leaving any issues in one accident, as per the Hindu Succession Act, defendant Nos. 1 to 3 being class-II heirs, are entitled for the suit schedule proportion. It is contended that, since the deceased Sangappa and his wife dedicated most of their love for promotion of religion, education and charitable causes for the benefit of public, to continue their noble thoughts and deeds, Sri Sangappa Pampanna Gadagshettar Trust was promoted. The defendants also denied the allegation on that the trust was hurriedly created after coming to know of the will of Sangappa. It is contended that infact the trust came into existence on 28.5.1994 whereas the will and its contends were made known on the next day and hence the creation of trust was prior to the disclosure of the alleged will of Sangappa. On these among other grounds, the defendants prayed that the plaintiffs have created the will to use up the properties of Sangappa and on the face of the doubtful nature of the will, the suit is liable to be dismissed.
11. Defendant No. 7 is an independent person said to be close associate of deceased Sangappa in running the Gavisiddeshwar College of which Sangappa was the Chairman of the Governing Body. He has infact supported the plaintiff's by identifying the hand writing in the will as that of the deceased Sangappa.
12. Based on these pleadings, the trial Court framed the following issues:
1) Whether the plaintiffs prove that the deceased Sangappa bequeathed the suit properties in their favour under the will deed dt. 20.5.1991?
Page 2380
2) Whether the defendants 1 to 5 prove that the Commissioner Agency shop business was kept Joint in the partition of 1954, held during the life time of father of deceased Sangappa?
3) Whether the suit is not maintainable for not impleading Sri Sangappa Pampanna Gadagshettar Trust, Koppal, as a party to this suit?
4) Whether the suit is not property valued and court fee paid is not correct?
5) Whether the plaintiff's are entitled for the relief of declaration on that the trust created under the name Sri Sangappa Pampanna Gadagshettar Trust, Koppal, is illegal void and not binding on them?
6) Whether the plaintiffs 1 to 3 are entitled for the relief of declaration that they are the joint owners of suit A schedule properties?
7) Whether the plaintiff No. 1 is entitled for the relief of declaration that he is the owner of suit B schedule properties?
8) Whether the plaintiff No. 2 is entitled for the relief of declaration that she is the owner of the suit C schedule properties?
9) Whether the plaintiffs No. 3 in entitled far the relief of declaration that she is the owner of the suit D schedule properties?
10) Whether the plaintiffs are entitled for the consequential relief of perpetual injunction against the defendants?
11) Whether the defendants are entitled for the exemplary costs of Rs. 30,000/ -?
12) What decree or order?
13. In order to prove the case, the plaintiffs have examined 8 witnesses and got marked exhibits P. 1 to P. 17. The defendants have examined two witnesses and got marked Exs.D. 1 to D6.
14. Considering the rival contentions and the evidence, as already noted, the trial Court decreed the suit and hence the present appeal.
15. Sri G.S. Visweshwara, learned Senior Counsel appealing on behalf of Sri Praveen Kumar Raikote, for the appellants/defendants was opposed by Sri Jayakumar S. Patil, learned Senior Counsel representing the respondents/plaintiffs.
16. We have heard both the Counsel at length and perused the evidence on both sides as well as the impugned judgment.
17. Sri G.S. Visweshwara, learned Senior Counsel appealing for the appellants/defendants contended that as the entire case of the plaintiffs rests on the validity or genuineness of the will dated 20.5.1991 said to have been executed by Sangappa, only on establishing the validity of the will, the other contentions of the plaintiffs can be looked into. Taking us through the will, he contended that on the face of it, the will is doubtful in nature. According to the learned Counsel, even though the will has been executed in the year 1991, three years prior to the accidental death of Sri Sangappa and his wife Mahantamma, absence of any share or Page 2381 arrangement for livelihood of Mahantamma in the said will creates a doubt about the genuineness. It is contended that Sangappa would never have dreamt that along with him his wife Mahantamma would also die. If really Sangappa Wanted to bequeath his property, he would have certainly made some arrangements for his wife Mahantamma, who even according to the plaintiffs had all the love and affection of deceased Sangappa. It is also contended that if one looks into EX. P.4 the will, the following circumstances viz.,
a) Blanks left in the will;
b) Improper or wrong descriptions of the properties;
c) Variance of the alleged signatures of Sangappa on each page;
d) Signatures at two places in the ink pen and at one place in the ball pen;
e) Non bequeathing the property of para-5 to anybody; and
f) Bequeathing the property in the name of Mahantamma creates doubt about the genuineness of the will.
It is contended that apart from making tenor of the will, no proper arrangement has been made for his affectionate wife Mahantamma and bequeathing her property also creates as to the genuineness of the will. Hence, it is contended that the trial Court without looking into these final aspects and the law regarding the proof of the will has blindly accepted the will as genuine, which finding is liable to be set aside. The learned Counsel also contended that in the alternate, even if the will be held to be genuine as per Section 21 of the Hindu Succession Act, since there was simultaneous death of testator - Sangappa and his wife, the wife Mahantamma was presumed to have survived her husband and after the death of Sangappa, she would inherit the properties of her husband Sangappa. It is contended that as Mahantamma also died intestate, the defendants being class-II heirs, they were entitled for the properties. The Appellants also relied upon the provisions of Section 14, 81, 88 and 89 of the Indian Succession Act and on the decisions in the case of Kaivelikkal Ambunhi v. H. Ganesh Bhandary ; C. Masilamini Mudallar and Ors. v. The IDOL of Sri Swaminathaswami Thirukoil and Ors. 1997 (6) KLJ 292; and Raghubar Singh and Ors. v. Gulab Singh . The learned Counsel also referred to Section 15 of the Indian Succession Act to contend that the defendants being only class-II heirs, there are not claiming the property and have created the trust to fulfil and carry on the philanthropic charitable intentions of the deceased Sangappa. It is also contended that intact the genuineness of the will can be seen from the undisputed fact that the earlier will executed by the deceased in the Page 2382 year 1974 was in favour of mother of the plaintiff's and the same was cancelled as the deceased Sangappa was not happy with the indifferent attitude of the plaintiffs and their parents and as such inspite of such fact in mind, it in doubtful whether Sangappa would have bequeathed all his properties in favour of the plaintiffs.
18. The genuineness in also doubted on the ground of non examination of the typist, who typed the will, the variance in the draft said to be enclosed with the final will, non examination of the Gurusiddeshwara Swamiji in whose presence the sealed cover containing the will said to have been opened, etc. So far as 'A' schedule properties are concerned, it is contended that as the lands were purchased in the name of Mahantamma and the records stood in her name, even if it is accepted that the lands were purchased by Sangappa, the provisions of Benami transaction Act comes in the way of the plaintiffs. On these among other grounds, it is contended that the suit of the plaintiffs in liable to be dismissed and a direction be issued to the plaintiffs, who by virtue of the orders of the Court have come into possession of the suit schedule properties to hand over the same with proper accounting.
19. On the other hand, Sri Jayakumar S. Patil, learned Senior Counsel appealing for the respondents, attempted to rebut the contentions regarding suspicious nature of the will to contend that the very fact that the will was produced not from the custody of the beneficiaries but through P.W.8 an independent person, who has spoken about the manner in which he had come in possession of the same and the instruction given by the testator, creates confidence as to the genuineness of the will. It is contended that P.W.8 being totally an independent person and according to him, it was the deceased, who himself has handed over the will in a sealed cover with instruction to open the same in presence of the referred Gavisiddeshwara Swamiji, there cannot be any doubts about the genuineness of the will. The learned Senior Counsel contended that the independent witnesses have identified the signature of the testator and as such, the will has been proved in accordance with law and there cannot be any suspicious circumstances. So far as the non examination of typist is concerned, it is contended that since the person could not be identified, the question of examining him, does not arise. The learned Counsel sought to justify as to the presence of manuscript or draft of the will along with the typed will. It is contended that nodoubt there are certain blanks left in the will by looking into Section 74 to 78 of the Indian Succession Act, by the very description of the properties, intention of the testator, was clear and on this ground alone, the will cannot be held suspicious or invalid. It is also contended that the argument of the defendants that absence of any provision for Mahantamma was not pleaded during the trial and the same cannot be now raised for the first tune. It is further contended that as the testator owned vast extent of properties and only portion of it has been included under the will and since the other properties were still available for dispossession, it could have been the intention of the Page 2383 testator that Mahantamma would get the other properties. To buttress his argument, the learned Counsel has relied upon the judgments of the Hon'ble Supreme Court in the case of Gumpha and Ors. v. Jaibai , S. Rajagopal Chettiar v. Hamasaveni Ammal and Ors. ; Kothi Styanarayan v. Galla Sithayya and Ors. AIR 1997 SC 353; G. Appaswamy Chettiar and Anr. v. R. Sarangapani Chettiar and Ors and Sadhu Singh v. Gurudwara Sahib Narike and Ors. .
20. After hearing both sides at length, the question that requires to be considered at the outset to regarding the genuineness of the will dated 20.5.1991 as the entire case of the plaintiffs and defendants' revolved around the said will. Hence, the questions that arises for our consideration is:
i) Whether the plaintiffs proved the deceased Sangappa bequeathed his properties in their favour under the will dated 20.5.1991?
ii) Whether the trial Court was justified in holding the will dated 20.5.1991 executed by Sangappa as genuine or not?
21. Before proceeding with the evidence on record, the two leading cases as to the proof of genuineness of a will are required to be noted.
22. The first being the case of Indu Bala v. Mahindra Chandra which reads as hereunder:
The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a Page 2384 case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the court would grant probate, even if the will might be unnatural and might out off wholly or in part near relations. Any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
23. The second decision is in the case of Jaswant Kaur v. Amrit Kaur which reads as hereunder:
In case where the execution of a wilt is 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 led 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 satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
(emphasis supplied)
24. Keeping the observations of the Hon'ble Supreme Court in view, the WILL would have to be looked into since it has been strenuously contended by the learned senior counsel for the appellant, that the very night of the WILL would indicate that the same has been fabricated. The original of the WILL dated 20.5.1991 is marked as Ex.P4 which is available in the records secured from the Court below. The same is typed in Kannada script on three sheets which are normally used for typing papers which are submitted to Court. The colour of the three sheets are not similar. The first sheet is light green, the second sheet is very light in colour (almost white) and the third sheet is darker among the three. At the outset, it is clear that all the three sheets are not from the name stock and if the same was got typed from a typist in a normal course an claimed, the sheets could not have been different from one another. The alleged signature of the testator in found at the bottom of each page on the facing side only. Though there is typed matter on the reverse side at pages 2 and 4 the same does not contain signatures. Even the signatures found on the facing sheet are not uniformly affixed. On first page the signature is more than one inch below the last line of the typed matter and has the appearance of a prefixed signature. Page 2385 The second sheet (page-3) contains signature near to the typed matter. The last sheet (page 5) has the signature which is at a distance of about an inch below the last line of the typed matter. The name of the alleged testator typed below the signature has all indications of the same being typed below an existing signature. This is evident from the fact that the name would not have been typed so low from the typed matter, particularly when the place 'Koppal' and date typed on the left side of the sheet is at a lesser distance from the typed matter and are not in alignment with each other. The space provided for signature of four witnesses seems very unnatural and even in that circumstance the name of the alleged testator would not have been typed so low if it was a natural typing cm a blank sheet. The first page and last page have been signed using fountain ink pen but the pen used in not similar to one another. The second sheet is signed by a ball point pen. The pattern of signatures if compared with the earlier admitted WILL dated 29.6.1990 which was registered but later revoked, which is marked as Ex. P1 would indicate uniform pattern immediately below the written matter without any gap and even a small correction has been attested, whereas in the propounded WILL, blanks have been lift. It does not require a detective like Sherlock Holmes to notice these discrepancies which are visible to naked eye and the very sight of the WILL does not inspire confidence that it could be genuine.
25. The other unnatural conduct is that the sealed envelope is said to have contained both the executed WILL and the band written draft. Admittedly the propunded WILL contains certain paragraphs in addition to title one contained in the handwritten draft. If the testator himself had completed and executed the WILL in the presence of the witnesses, there was no reason whatsoever to place the incomplete handwritten draft in the envelope. This in fact would gives strong indication that the plaintiffs who have been able to place their hands on an incomplete draft have fabricated the WILL using blank signed sheets which had been signed by the testator at different times and only to make it appear authentic, the story of the envelope containing the draft has been weaved.
26. The above analysis is not a surmise but the admission of Sri Basetteppa Sunkad (PW 1) runs thus:
This PW.1 is none other than the father of the plaintiffs who claim to be legatees under the WILL.
27. In this background, the discrepancies in the signatures and the different pens which were used also assumes importance. In this regard PW.4, Sri Ayyanagowda Hiregowdar who claims to be one of the attesting witness of the WILL in his cross examination admitted that Ex.P4(a) is the signature with ink pen, except Ex.P4(c) being the signature with ball pan and again signature Ex.P4(b) is by ink pen and he has also stated that the signatures Page 2386 in Ex.P4(a) and (b) have been made by the very same pen. He has further stated that both the pens were available with the testator. He has sought to explain the same by stating that white signing the third page the ink pen was not working, this explanation is palpably false and cannot be believed for the reason that the first page has been signed by fountain ink pen and the third page again has been signed by the fountain ink pen whereas the second page has been signed by a ball point pen. Hence this would not only indicate the incorrect statement but would clearly indicate the unnatural circumstances that a person would be so careless while signing a document in the nature of a WILL which is fully known to him that it is a document regarding which he would not be available to explain the situation. One other reason for which the said explanation cannot be believed is that if the fountain ink pen used by the testator was really not working after affixing the signature on the first page, it cannot be understood as to how be could have signed the second sheet with the ball point pen and thereafter once again sign the third sheet with the fountain ink pen mote so, when the ink pen used in the first sheet and the third sheet we not similar to one another. That apart the signatures of the no called attesting witnesses to the WILL would indicate that the same have been made with fountain ink pen and the said ink of these signatures are much fresher than the signatures of the alleged testator. Yet another reason to disbelieve the theory of PW.4 about the variation in the use of pen and which cannot be accepted is that if in fact the fountain ink pen of the testator was not working, the witnesses who claim to have been present simultaneously would have provided a fountain ink pen to continue the further signatures in the WILL.
28. The said discrepancies though noticed have been sought to be explained by the learned Judge of the Court below in a manner as though to overcome the same wherein the learned Judge states that the difference in the colour of the papers cannot be suspected because it could have been used by the typist. The learned Judge further holds that it cannot be suspected since the said papers contain the signatures and the signatures have been identified by the witnesses. As noticed by us above, the very signatures itself are doubtful that it has been affixed after the matter was typed and the explanation given by the witnesses are even more doubtful and as such the learned Judge could not have hightly brushed aside these aspects.
29. The learned senior counsel for the respondent has sought to contend that the discrepancies pointed out cannot take away the genuineness or validity of the WILL since the WILL has not been produced from the custody of the beneficiary, but the same was produced by the Advocate Sri Bhusanoormath, who has spoken with regard to the same when he was examined as PW.8 and the sealed envelope has been opened in the presence of Gavimathada Swamiji. This contention cannot advance the case further since what cannot be ignored is that the said Advocate who was examined as PW.8, was known both to the testator as well as PW.1 i.e., the father of the plaintiffs, who are the legatees under the WILL. The Page 2387 evidence of PW.8 would indicate that the alleged testator was consulting him earlier and was visiting his chambers and he had approached him about the WILL also. The very same PW.8 has appeared in his professional capacity on behalf of PW. 1 at different point of time. This coupled with the fact that PW. 1 has admitted that signed papers were available would lead to the irresistible conclusion that PW. 1 has taken a major part in bringing about the WILL and the WILL itself does not inspire confidence in the Court.
30. Keeping this in view, the decisions which have been noticed and extracted by us above with emphasis would indicate that even though it is an adversarial system, the WILL propounded should inspire the confidence of the Court as well. Mere compliance of the provisions of law more particularly Section 63 of the Indian Succession Act by examining the relevant persons and the said persons speaking about the WILL alone is not sufficient.
31. One other reason to indicate that the alleged testator himself had not made such a WILL is evident from the fact that the handwritten draft which is said to have been enclosed in the envelope is incomplete and the same does not indicate that the same has been executed. Therefore the enclosing of the draft itself becomes suspicious circumstance to indicate that the incomplete draft which has come into possession of the plaintiffs has been turned out into a WILL by using the paper which was available and only to indicate the authenticity, the said draft has also been produced so as to make out a circumstance that the WILL was available in the envelope itself. Apart, from the meticulousness which we have noted about the testator with regard to the nature of signing the earlier WILL find the discrepancies in the propounded WILL, it also becomes important to notice that at an earlier point of time the testator had thought it fit to register the WILL, which would indicate that the testator was aware of the importance of such a document and it cannot be expected of his conduct to thereafter keep an incomplete draft and along with it a completed WILL with several discrepancies on the face of it. Further the plaintiffs in order to give some credence to the WILL have stated that the envelope was opened in the presence of Gavimathada Swamiji and at that point both the WILL as well as the draft was available. The said Gavimathada Swamiji therefore would have been a very important witness who should have been examined by the plaintiffs to speak about these aspects of the matter. Despite the same, the plaintiffs have conveniently avoided examining the Swamiji either by summoning or by taking out commission to examine the witness.
32. In this back ground, the perusal of the judgment passed by the Court below more particularly at para No. 59 and 60 of the judgment, the learned Judge in fact tries to explain the discrepancies and with regard to some of the aspects which were pointed out, the learned Judge has indicated that since the very name words are found in the draft, the intention of the testator is clear. But, the whole question is even if the draft had been left behind by late Sangappa, that itself does not constitute his WILL since as already noticed above, the same had not been completed and executed and as such Page 2388 the same was not the last WILL and testament. For all these reasons, we are of the view that the Court below had erred in holding issue No. 1 in the affirmative. Consequently, we reverse the said finding and hold issue No. 1 in the negative declaring that the WILL dated 20.5.1991 claimed to have been executed by Sangappa is not a genuine one. Since we are of the said view on issue No. 1, the other issues would consequently have to be held as negative. Further as already noticed above, though several contentions were raised in this appeal, considering the fact that the WILL dated 20.5.1991 propounded being not a genuine document, all other questions does not arise for consideration.
33. Having stated thus, one other aspect which requires consideration is the contention of the learned senior counsel for the appellant that in the event of the appellants succeeding in this appeal, the respondents i.e., the plaintiffs should be directed to handover the possession of such of those properties which are in their possession. This contention does not call for detailed discussion in view of the fact that the plaintiffs were before the Court below seeking certain rights based on the WILL dated 20.5.1991 fund to have been executed by Sri Sangappa. The aspect of possession was not an issue which was agitated before the Court below and in this appeal the only question with regard to the genuineness and validity or otherwise of the WILL was decided. Therefore the question with regard to any of the properties being in possession of any particular plaintiff is not an issue. Therefore the question of directing the parties to handover possession in this appeal would not arise. However, it would be open to the appellants to agitate their right in that regard in accordance with law, and the contentions of the parties are left open in that regard.
34. In the result, we pass the following:
Order I) The judgment and decree dated 12.9.2001 passed in O.S. No. 56/1994 is set aside.
II) Consequently this appeal is allowed.
III) Considering the peculiar circumstances in this case, the parties shall bear their own costs.