Karnataka High Court
B R Gopalakrishna vs B R Jayaram on 6 December, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.977/2010 (DEC/PAR)
BETWEEN:
1. B.R. GOPALAKRISHNA
S/O N. RAMANNA
AGED ABOUT 59 YEARS
2. N.R. LAKSHMAN
S/O N. RAMANNA
AGED ABOUT 57 YEARS
BOTH R/A NO.1232,
9TH MAIN ROAD,
VIJAYA NAGAR,
BANGALORE- 560 040
...APPELLANTS
(BY DR. V.C. JAGANNATH, ADVOCATE)
AND:
1. B.R. JAYARAM
S/O N. RAMANNA
AGED ABOUT 55 YEARS,
R/A NO.1232, 9TH MAIN ROAD,
VIJAYA NAGAR,
BANGALORE-560 040
2. R. NAGARAJ
S/O N. RAMANNA,
2
AGED ABOUT 61 YEARS,
R/A NO.2311/30,
9TH MAIN ROAD,
2ND STAGE, D BLOCK
RAJAJINAGAR,
BANGALORE - 560010
...RESPONDENTS
(BY SRI. K.V. SHYAMPRASAD, ADVOCATE FOR R1;
SRI. K.N.PUTTEGOWDA, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41, RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 25.02.2010 PASSED IN O.S.4813/2000 ON
THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
DECLARATION AND PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.09.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. The present appeal is filed by the unsuccessful plaintiffs challenging the portion of the judgment and decree passed in O.S.No.4813/2000 dated 25.02.2010 wherein, the suit of the plaintiffs was dismissed in respect of item Nos.1 and 3 being dismissed.
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2. Parties are referred to as plaintiffs and defendants as per their original ranking before the Trial Court.
3. Factual matrix of the suit of the plaintiffs of the case on hand are as under:
Plaintiffs and defendants are the children of Sri Ramanna who died on 15.03.1999. Their mother Rukmanamma died on 01.04.1996. Second defendant was residing in a separate residence during the life time of Rukmanamma in the property which belonged to Rukmanamma and therefore, the same is not subject matter of the suit. Plaintiffs contended that property bearing No.1232, 9th main road, Vijayanagar, Bengaluru described in item No.1 of the suit schedule properties was purchased by Ramanna from Mysore Housing Board. The said property was allotted to Ramanna by the Housing Board and a registered lease cum sale deed was executed in the year 1966. After the prescribed period elapsed, in the year 1977, sale deed came to be executed in favour of 4 Ramanna. After the death of Ramanna, plaintiffs and defendants are the joint owners of the property and they are residing in the said property.
4. It is further contended that Ramanna suffered from Cancer of his right leg and he had undergone a surgery in KIDWAI Memorial Institute of Oncology on 01.04.1998. Earlier to the same, he had also undergone a surgery in Victoria Hospital, Bengaluru. It is further contended that because of the two surgeries and old age, Ramanna had restrictive movement and he has been looked after by second plaintiff. Despite the surgery, the Cancer cells spread to the lungs of Ramanna and ultimately, he died on 15.03.1999. Because of Trauma, Ramanna had become physically and mentally weak in his last days, he could not understand the worldly things properly and he was almost bedridden. It is also contended that he has lost his mental capacity.
5. It is further contended that first defendant who was employee in the Syndicate Bank, Hospet Branch, till 5 June 1998. Thereafter he was transferred to Munirabad Branch, near Hospet in July 1998. He worked in the said Branch upto June 2000 and thereafter he was transferred to Balepet Branch. When first defendant working at Munirabad, his family resided in Bengaluru along with other members of the family of Ramanna and first defendant used to visit Bengaluru every week end and in such visits he had dominated over the Will of Ramanna. It is also contended that Ramanna fell ill in the first week of March 1999 and his health condition started deteriorating day by day. On 11.03.1999, Ramanna was admitted to Mallige Nursing Home and he died on 15.03.1999, while he was treated in Intensive Care Unit. It is also contended that first defendant came to Bengaluru on 06.03.1999. Further it is contended that on 08.03.1999 without the knowledge and consent of the plaintiffs, first defendant took Ramanna out of the house stating that he is taking him for medical examination and by force, undue influence, coercion, misrepresentation and by playing fraud, first defendant got a Will executed by Ramanna 6 bequeathing item No.1 of the suit property in his favour on 08.03.1999 itself. Therefore, plaintiffs contended that the said Will is not binding on him and they are also entitled for the share in the suit item No.1 of the property.
6. Plaintiffs also contended that item No.2 of the schedule property is a property bearing No.19, TCM Royan road, is the ancestral property of the father of the parties to the suit and therefore they contended that they are entitled for 1/3rd share in the suit schedule property. Item No.3 of the suit property is the movable property i.e., the amount in SB Account of Ramanna, term deposits in the name of Ramanna in different banks and plaintiffs laid a claim in respect of them also.
7. Upon service of the suit summons, defendant Nos.1 and 2 entered their appearance and filed separate written statement. While admitting the relationship of the parties and also the fact that Ramanna was suffering from Cancer and his admission to Mallige Nursing Home on 7 11.03.1999 and his death on 15.03.1999 other allegations are denied by the first defendant.
8. First defendant specifically contended that on 08.03.1999 Ramanna executed a registered Will bequeathing item No.1 of the suit property in favour of first defendant. It is also contended that item No.1 of the suit property was a self acquired property of Ramanna. First defendant specifically denied the allegation that by exerting undue influence, coercion, misrepresentation etc., he got bequeathed item No.1 of the suit property in his favour. He specifically contended that Ramanna out of his volition executed Will in favour of first defendant as Ramanna had more love and affection towards the first defendant. First defendant denied the plaint allegation that in the guise of taking for medical treatment, Ramanna was taken out on 08.03.1999 and got Will executed fraudulently. However, he did not have any objection for partition of item No.2 of suit schedule property. In respect 8 of item No.3 of schedule property, there is no denial in the written statement except seeking dismissal of the suit.
9. In the written statement of second defendant, relationship is admitted and so also, it is admitted that item No.1 of the suit property belonged to Ramanna as it is the self acquisition. He also denied that execution of the Will in favour of the first defendant and sought for share in the property.
10. In view of the rival contentions, following issues have been raised before the trial Court:
"1. Whether the 1st defendant proves that his father late N. Rammanna has executed a will dated:8.3.1999 in respect of the property at Item No.1 of the plaint schedule in his favour?
2. Whether the plaintiffs prove that the will dated:8.3.1999 is null and void and not binding on the plaintiffs?
3. Whether the plaintiffs are entitled to 1/3rd share each in the suit schedule properties?
4. Whether the suit is not properly valued and court fee paid is insufficient?
5. To hear what reliefs, the parties are entitled to?
6. What decree or order?"9
11. In order to prove the case of the plaintiffs, plaintiff Nos.1 and 2 got examined themselves as P.Ws.1 and 2 and Smt. P.U. Vimala is examined as P.W.3. Plaintiffs in all relied on 31 documents which were exhibited and marked as Exs.P.1 to P.31 comprising of xerox copy of kidwai Memorial Institute - Ex.P.1, Photo - Ex.P.2, case summary of N. Ramanna - Ex.P.3, two medical report diaries - Ex.P.4, Electric bill - Ex.P.5, Ration card - Ex.P.6, cheques of share companies - Ex.P.7, letter of annual general body meeting for the year 2005-2006 dated 01.09.2006 - Ex.P.8, letter of annual general body meeting for the year 2005-2006 dated 15.11.2007 - Ex.P.9, letter dated 15.02.2007 - Ex.P.10, Medical certificate of Gayatri center - Ex.P.11, endorsement issued by Bengaluru Mahanagara Palike - Ex.P.12, endorsement issued by Bengaluru Mahanagara Palike dated 06.01.2000
- Ex.P.13, letter written by plaintiff No.2 to the Assistance Revenue Inspector, Binnypet, Bengaluru - Ex.P.14, letter 10 dated 22.09.1999 written by plaintiff No.2 to the Assistance revenue Inspector - Ex.P.15, Endorsement issued by Bengaluru Mahanagara Palike dated 22.11.1999
- Ex.P.16, Endorsement issued by Bengaluru Mahanagara Palike dated 08.09.1999 - Ex.P.17, letter dated 28.06.1999 - Ex.P.18, letter dated 14.06.1999 - Ex.P.19, Medical identity card issued by HMT limited - Ex.P.20, pay slips - Exs.P.21 to P.28, medical certificate issued by Kidwai Hospital -Ex.P.29, certificate issued by Raghavendra clinic - Ex.P.30, certificate issued by HMT limited - Ex.P.31.
12. On behalf of the defendants, in all nine witnesses were examined as D.Ws.1 to 9. Among them, D.W.1 is the first defendant, D.Ws.2 to 9 are N. Channappa, C.S. Neelakantappa, Dr. R. Narasimhan, K.Kandaswamy, K. Shivaji Rao, V.K. Kalkundri, V. Hassan and R. Nagaraj. On behalf of defendants, as many as 48 documents were relied upon which were exhibited and marked as Exs.D.1 to D.48, comprising of sale deed - 11 Ex.D.1, khatha - Ex.D.2, will dated 08.03.1999 - Ex.D.3, notice dated 28.06.1999 - Ex.D.4, application dated 06.07.1999 - Ex.D.5, Notice dated 08.09.1999 - Ex.D.6, Notice dated 08.10.1999 - Ex.D.7, application dated 18.01.2000 - Ex.D.8, tax paid receipts - Ex.D.9, application dated 29.05.1998 - Ex.D.11, memorandum dated 13.06.1998 - Ex.D.12, memorandum dated 15.06.1998 - Ex.D.13, share certificate - Ex.D.14, unit certificates - Exs.D.15 to 20, share allotment of defendant
- Ex.D.21, Notice dated 09.04.1994 - Ex.D.22, Notice dated 09.04.1994 second time - Ex.D.23, allotment notice
- Ex.D.24, debenture certificate - Ex.D.25, unit scheme 1964 - Ex.D.26, share certificate - Exs.D.27 to 31, allotment advice cum money notice dated 14.07.1995 - Ex.D.32, share certificate - Ex.D.33, copy of notice dated 19.02.2000 - Ex.D.34, postal acknowledgement - Exs.D.35 and 36, notice dated 03.08.2000 - Ex.D.37, postal acknowledgement - Ex.D.38, complaint - Ex.D.39, ledger extract - Ex.D.40, xerox copy of application form - Ex.D.41, original application Ex.D.41 (a), statement of 12 account - Ex.D.42, syndicate bank account - Ex.D.43, xerox copy of certificate - Ex.D.44, account sheet of S.B. Account NO.4476 of defendant No.1 Ex.D.45, certified copy of account extract of S.B. Account No.201/86291 - Ex.D.46, certified copy of loan deposit account No.2001099dated 22.04.2001 - Ex.D.41, statement of account loan deposits 2001098 Ex.D.48, Three documents were also marked as Exs.C.1 to C.3, among them Ex.C.1 is the affidavit of Sri V. Hasan, Ex.C.2 is the photo copy of memo dated 03.12.2004 and Ex.C.3 is the Court notice.
13. On conclusion of the Trial, learned Trial Judge heard the arguments of parties in detail, decreed the suit of the plaintiffs in part by granting the share to the plaintiffs in respect of item No.2 of the suit schedule property and dismissed the suit as against suit item No.1 and 3 of the suit schedule properties. Defendant did not challenge the judgment and decree by filing appeal or cross objections. As such decree has been final in respect of item No.2 of Suit Schedule Property.
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14. Being aggrieved by dismissal of item Nos.1 and 3 of the suit schedule properties, plaintiffs are in appeal on the following grounds:
The trial court erred in holding that 1 defendant - 1 respondent has proved the due execution of will deed dated 8.3.1999 alleged to have been executed by father late Ramanna relying on the inconsistent evidence of defendants.
The trial court has given a go by to the cross examination of defendants and the witnesses. The trial court has failed to notice several contradictions in the evidence of the 1st defendant and his witnesses.
The trial court even after coming to the conclusion that the evidence of DW1 and DW2 has to be rejected as being interested witnesses, blows hot and cold by stating that their evidence has to be accepted on the ground that they have no interest in the property. This has lead to miscarriage of justice.
The trial court failed to notice that on the date of will Ramanna was not in hale and healthy and in not sound disposing state of mind. The trial court erred in disbelieving evidence of the plaintiff's 14 and 2nd defendant with regard to the health of Ramanna and bad state of mind.
The trial court failed to see that the 1 defendant has failed removed the suspicious circumstances in the execution of the Will. WILL is dated 8.3.1999. Ramanna was not physically and mentally sound at that time. He had lost conscience. N.Ramanna was aged 79 years. He had under gone 2 major surgeries for tumor and was given Radiation Treatment for about 1 ½ months. He was not able to move about. He was taken to KIDWAI on 10.3.99 by 1st defendant. He was admitted to Mallige Medical Centre on 11.3.99 in ICU. Died in the hospital on 15.3.99. From 6.3.1999 the condition of Ramanna was very bad. The medical report and the evidence of defendants witnesses clearly establish that Ramanna could not have executed the Will. The trial court has failed to notice that all the witnesses and person identifying Ramanna are close friends of 1st defendant.
The trial court has failed even to look to the medical reports of Ramanna which clearly establish the fact that Ramanna was not mentally and physically fit to execute the alleged Will. 15 The medical report of Mallige Medical Centre shows that the condition of Ramanna was very bad. The Medical Report Ex.P-3 on 11.3.1999 reads:
"Associated H/o cough and expectoration. Patient also given H/o pain in (R) L/L since one week sudden outset. Pt not able to walk as a result of pain."
Admittedly Ramanna required assistance to move out of the house. The 1 defendant and his witnesses have clearly deposed that after the second operation of Ramanna in April 1998, Ramanna was unable to move about. Admittedly Ramanna required assistance to move. Under the said circumstances the 1st defendant has failed to establish as to How Ramanna could have gone to meet the Advocate in the Bar Association and go to the Sub-Registrar Office and register the Will When Ramanna was not able to walk from the time he underwent two surgeries of the leg in January and April 1998. Ramanna could not have met Advocate Kandaswamy (DW-5) on 06.03.1999 and could not have gone to Sub- Registrar Office on 08.03.1999 to registered the will.
16The trial court failed to notice the evidence of 2nd Defendant (DW-9). The 2nd defendant in the evidence has stated that his father Ramanna was not physically and mentally capable to execute WILL. Further deposes that his father had love to all children; and that 1st defendant neglected his second daughter as she is female baby. The said second daughter is taken care of by 2nd defendant from birth. DW9 states that 1st Plaintiff wife Smt. Vimala (PW3) was looking after Ramanna. This evidence of 2nd defendant is vital because he is very close to 1st defendant. The 1st defendants wife and 2nd defendants wife are sisters and 1st defendant daughter is taken care of by 2 st defendant even now. The 1 defendant did not want his 2 daughter because girl child was born. Hence from the birth the 2nd daughter is with 2 defendant.
The will is alleged to have been drafted by Advocate Kandaswamy [DW 5]. He deposes that Ramanna did not bring any document of title to instruct/prepare will. The Will gives details of purchase of the property like registration number, date of purchase, date of allotments. Not even person with very high IQ will be able to remember the date of purchase, registration number, date of allotment etc. Considering the 17 age and health of the testator it would be impossible to remember the dates and numbers of the title deeds. Even the draft of the WILL alleged to have been drafted by DW5 Kandaswamy is not produced.
The trial court erred in not noticing the fact that all the attesting witnesses are very close friends of 1 defendant. DW2 [Chennappa] and 1 defendant studied together from class 1. DW3 [Neelakantappa] & 1st defendants are employed together in Syndicate Bank, Gandhinagar Branch, from 1978. DW4 [Dr.Narasimhan] is doctor of 1st defendant. DW6 Shivaji Rao, who is alleged to have identified Ramanna, was working under 1 defendant in J.C.Road Branch of Syndicate Bank. This clearly establish the fact that the 1st defendant has got created the WILL with help of his friends at a time when Ramanna was in very bad state of mental and physical health. The trial court failed to appreciate the fact that DW 4 has denied the fact that late Ramanna called DW4 for attestation. In fact the said witness has controverted his affidavit statement in the cross examination, DW-4 - Dr.Narasimhan in his affidavit evidence states in Para-2 that:-
"On Sunday the 7th March 1999, at around 11.00 am and 11.30 am Sri.N.Ramanna telephoned to 18 me at my clinic requesting me to be present at his house at 9.30 a.m. on the next day i.e., 08.03.99 for attesting his will". However in the Cross-examination at Page 6 he states:- "He did not tell me over phone about the attestation of the will or anything. If it is suggested to me that my statement in my affidavit that Ramanna called me to be present at his house on the next day for attestation of his will is incorrect".
The trial court erred in stating that since Ramanna was going to hospital for treatment, like wise Ramanna went to Sub-Registrar for registration. Even 1st defendant has deposed that Ramanna was always requiring assistance to move about. Further DW4 Dr. Narasimhan has deposed that Ramannas' movements were restricted and required assistance to move out of the house. The plaintiffs' have categorically stated that on 8.3.1999 1st defendant took Ramanna to hospital in an Autorickshaw. Further 1st defendant had come from Munirabad and was on leave from 6.3.1999. The plaintiffs were attending offices. Since 1st defendant was on leave he had agreed to take Ramanna to the hospital. This is quite a natural happening. In fact admittedly 1 defendant took Ramanna on 10.3.1999 to hospital. The trial court has failed to see the vital evidence regarding Ramannas' movements.
19The trial court failed to notice the fact that the disposition is unnatural. especially in view of the fact that DW-1 states all resided together. Further it is admitted that Ramanna had no ill-will with his sons. DW-1 admits that the requirements of father Ramanna was taken care of by all the children. Even now all are living as joint family. DW-1 admits that when all went to work wife of 1st plaintiff (Smt. Vimala - PW3) was in the house.
The trial court has not even considered the evidence of the plaintiffs and the PW.3. The evidence of DW.9 and PW.3 goes to show that Ramanna was not in a position to execute and register the WILL PW.3 Smt. Vimala is house wife and took care of the household requirements. Even now the household works are taken care of by Smt.Vimala - PW.3. PW.3 was the house even as on 8.3.99 and 1 defendant respondent took Ramanna to hospital. Thus the evidence that Ramanna executed the WILL in the house is totally absurd.
The trial court erred in not reading the contents of the Will. The Will doesn't speak of any other children of Ramanna. Not even names are mentioned. No reasons are assigned in the will to 20 state why others are left off from the property rights. Further will doesn't speak of any other moveable properties bank accounts, shares, debentures held by Ramanna.
The trial court failed to verify the signatures of Ramanna in the Will. Signature of Ramanna in the will is different from the admitted signature of Ramanna in Ex. P-40 [Application for opening Bank Account]. The signature of Ramanna in each page of will is different.
The trial court has failed to appreciate the fact that even according to DW2 Chennappa, Ramanna was not willing to tell about WILL to anybody. In the back ground of this statement the 1 defendant has failed to prove how he got the custody of the WILL. The 1 defendant states that he came to know of the WILL through friend Ashwathappa friend of Ramanna. If Ramanna had no intention to inform any one about the WILL then how Ashwathappa came to know of the WILL.
The 1 defendant states that he obtained the WILL through Ashwathappa. Admittedly 1st Defendant has not given any authorization or power of attorney to Ashwathappa to collect the will. Then how did the office of the Sub-Registrar give the 21 will to Ashwathappa who is neither a nominee nor a beneficiary of will.
The trial court has not considered the deposition of DW1 about the fact that Ramanna was in the house throughout from 6.3.1999 till 10.3.1999. In the evidence DW1 states that between 06.03.1999 and 11.03.1999 to my memory on 10.03.1999 once I had taken my father to KIDWAI Memorial Hospital, it is true to suggest that till 10.03.1999 my father was at home. Then how Ramanna went to met Kandaswamy on 06.03.1999 & on 08.03.1999 to the Sub-Registrar Office is not explained by the first defendant. The trial court has erred in accepting the evidence of Advocate Kandaswamy - DW5.
Admittedly the draft of the WILL is not produced. The non-production of the draft is vital. The trail court brushes aside the non-production. Further DW5 failed to even identify Ramanna in the photograph The trial court has come to wrong conclusion regarding the evidence DW6. It is not the case of 1st defendant that DW6 typed the WILL According to DW5 the WILL was got typed in typing pool in City Civil Court Complex. The trial judge has 22 wrongly come to the conclusion that DW6 has typed the WILL The trial court is not correct in stating that giving wrong address by the attestors and DW6 does not affect the WILL. No reasons are given as to why wrong addresses are given.
The trial court has not even considered any of the contradictions in evidences of the attestors. The trial court simply brushes aside the several contradictions pointed out. These contradictions clearly establish the fact that the WILL was obtained by 1st defendant to knock off the property.
The trial court erred in stating that endorsement the Sub-Registrar is 20/10) |sufficient to prove that Ramanna knew the contents of the WILL The 2 Defendant (DW-9) in the evidence has stated that his father Ramanna was not physically and mentally capable to execute WILL Further deposes that his father had love to all children; and that 1st defendant neglected his second daughter as she is female baby. The said second daughter is taken care of by 2 defendant from birth. DWS states that 1st Plaintiff wife Smt. Vimala (PW3) was looking after Ramanna. The 2 defendants' evidence is vital because he is very 23 close to 1st defendant. The 1 defendant wife and 2 defendant wife are sisters. Further the 1st defendant daughter is taken care of by 2 defendant even now.
The trial court did not understand the motive of the 1st defendant. The 1st defendant with his friends DW2, DW3, DW4 & DW6 hatched plot to grab the suit item No.1 at the feeble end of Ramannas' life. The 1st Defendant took Ramanna on 8.3.1999 stating that he is taking his father to hospital then with his friends exercised pressure on Ramanna, who was mentally unfit, un- consciences, and have registered the WILL. The WILL is not out of free wish of Ramanna. The exercise of force is clear from the fact that only friends of 1st defendant have attested and identified Ramanna The trial court failed notice that the 1st defendant has exercised undue influence and obtained the WILL by misrepresentation, coercion fraud and without informing Ramanna of the contents of the WILL. The trial court erred in concluding that 1 defendant and his wife were looking after Ramanna. The 1 defendant did not examine his wife to show that only she was looking after Ramanna. Further the 1st defendant failed to examine his wife to prove that on 8.3.1999 he 24 took his wife to office. The trail court after coming to conclusion that DW2 & 3 are interested witnesses has erred in accepting their evidence by stating that they are independent witnesses. The trial court has stated that 1 defendants withdrawal of the reimbursement amount it does not mean that he spent the amount for the medical treatment to support the case of the Defendant No.1 for proving the will. This clearly contradicts the trial courts view that 1 defendant was looking after Ramanna.
The trail court erred in that plaintiff have failed to establish the existence of item No. 3 of the plaint. The 1st defendant has admitted that he has got all shares and bank accounts of Ramanna transferred to his name.
The trial court erred in stating that there is nothing to show that Ramanna purchased item No.3. In fact the 1st defendant has deposed that he has not invested in the purchase of shares and debentures by Ramanna. It is the case of 1st defendant that he was nominee. Nominee has no right to the entire amount.
The trial court erred in rejecting the application for correction of typographical errors in the evidence of PW3. The trial court on several 25 previous occasions allowed the errors pointed out. The vital part of the evidence has been typed wrongly and has caused injustice to the plaintiff. The trial court has not appreciated both oral and documentary evidence. Even otherwise, the impugned judgment in so far as decree for partition is concurred is not based facts, law and probabilities of the case. The appeal is in time excluding the time taken obtaining for certified copies of judgment and decree."
15. Dr. V.C. Jagannath, learned counsel for appellants, reiterating the grounds urged in the appeal memorandum contended that the learned Trial Judge wrongly believed that the Will executed by Ramanna on 08.03.1999 and denied the share in respect of the first item of the suit property.
16. He Further contended that Ex.D.3 Will is suffering from suspicious circumstances and therefore, the Trial Court ought not to have placed reliance in Ex.D.3 in denying the share of the plaintiffs in respect of item No.2 of the properties. He also contended that the dismissal of 26 the suit in respect of item Nos.1 and 3 of the suit property is incorrect and sought for allowing the appeal.
17. Per contra, learned counsel representing first defendant Sri K.V. Shamaprasad, supported the impugned judgment and sought for dismissal of the appeal. He pointed out that mere execution of plaintiffs and second defendant in Ex.D.3 itself cannot be treated as a suspicious circumstance. He also pointed out that none of the attestors are interested witnesses to Ex.D.3 and their testimony has thus been rightly appreciated by the Trial Court in upholding the Will of Ramanna marked at Ex.D.3 and rightly denied the share to the plaintiffs in item Nos.1 and 3 of the suit properties.
18. He also pointed out that the material evidence on record clearly shows that Ramanna was mentally sound despite his physical ailments and there is no material on record to show that he had no mental stability to execute the Will on 08.03.1999. Under such circumstances, the Trial Court has rightly appreciated the material evidence 27 on record and has rejected the claim of the plaintiffs based on the Will executed by Ramanna.
19. In support of his arguments he has placed reliance on following judgments.
"1. AIR 1959 SUPREME COURT 443 Sri H. Venkatachala Iyengar -Vs- Smt. B.N. Thimmajamma and others.
2. ILR 2008 KAR 2115 Sri J.T. Surappa and another Vs Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others.
3. ILR 1998 KAR 1730 - Sri Puttegowda -Vs- Sri Thimmajamma and others.
4. AIR 1995 SUPREME COURT 1852 - Sri PPK Gopalan Nambiar -Vs- PPK Balakrishnan Nambiar and others.
5. AIR 1989 ALLAHABAD 17 - Smt. Manorama Srivastava and another -Vs- Smt. Saroj Srivastav
6. AIR 1964 SUPREME COURT 529 - Sri Shashi Kumar Banerjee and others -Vs- Sri Subadh Kumar Banerjee (since deceased) L.Rs.
7. AIR 1985 CALCUTTA 349 -Smt. Chinmoyee Saha -Vs- Debendra Lal Saha and others.
8. ILR 1987 KARNATAKA 1225 Mr. R. Joseph -Vs-
R. Aralappa.
9. AIR 1960 ANDHRA PRADESH 359- Smt. Vadrevu Annapurnamma -Vs-Sri Vadrevu Bhima Sankararao and others.28
10. AIR 1974 SUPREME COURT 1999- Sri Surendra Pal and others -Vs- Dr. (Mrs) Saraswati Arora and another.
11. (2001) 9 SUPEME COURT CASES 316 Sri Baij Nath Chaudhary -Vs- Sri Dilip Kumar.
12. AIR 1995 SUPREME COURT 1684 Sri Rabindra Nath Mukherjee and another -Vs- Sri Panchanan Banerjee (dead) by L.Rs and others.
13. AIR 1991 KARNATAKA 86 - Sri Sanjiva @ Sanjiva Bhandary -Vs- Smt. Vasantha and others.
14. AIR 1982 SUPREME COURT 133 Smt. Indu Bala Bose and others -Vs- Sri Manindra Chandra Bose and another.
15. (2003) 8 Supreme Court Cases 537, ILR 2004 KAR 440 -Smt. Ramabai Padmakar Patil (dead) through L.Rs and others -Vs- Smt. Rukminibai Vishnu Vekhande and others
16. AIR 1985 SUPREME COURT 500- Sri Satya Pal Gopal Das-Vs- Smt. Panchubala Dasi and others
17. (2002) 2 SCC 85 Madhukar D Shinde -Vs-
Tarabai Aba Shedage "
20. In reply, Sri Dr. V.C. Jagannath, learned counsel contended that the propounder of the Will has failed to properly establish the contents of the Will that the Will is free from suspicious circumstances and exclusion of 29 the plaintiffs alone is not the circumstance on which the plaintiffs have attacked Ex.D.3 and material evidence on record clearly establish that the Will was surrounded by more than one suspicious circumstance and Trial Court failed to appreciate the same and sought for allowing the appeal.
21. In respect of his arguments, he has relied on following judgments:
1. AIR 1959 SCC 44 - H. Venkatachala Iyengar -
Vs- .B. N. Thimmajamma & others.
2. AIR 2009 SC 1766 - Bharpur Singh & others -
Vs- Shamsher Singh.
3. ILR 2008 Kar 2115 - Sri. J. T. Surappa & another -Vs- Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust & Others.
4. AIR 1982 Cal 236 - Anath Nath Das & Others -
Vs- Smt. Bijali Bala Mondal.
5. ILR 2010 Kar 3552 - Sri. Raghu Kumar -Vs-
Smt. Parvathi & Others.
6. ILR 2007 Kar 5160 - Sharanabasappa and others -Vs- Shivakumar and others.
7. AIR 2009 SC 1369 - Lalitben Jayantilal Popat -
Vs- Pragnaben Jamnadas Kataria and others. 30
8. AIR 2002 Kar 83 - Virupakshappa Malleshappa and others Smt. Akkamahadevi and others.
9. RFA 1253/2005 [DD 15.12.2010] - Smt. P. N. Bhanumathi & others -Vs- B. M. Sada Shivappa.
10. AIR 2006 Delhi 354 - Vidya Sagar Soni -Vs-
State and others.
11. AIR 2001 Mad 370 - P. Sivasubramaniam -Vs-
S. Karthikumar and another.
12. AIR 1977 SC 74 - Smt. Jaswant Kaur -Vs-
Smt. Amrit Kaur and others.
13. (1984) 1 SCC 424 - Smt. Sarbati Devi and another -Vs- Smt. Usha Devi.
14. AIR 2006 SC 1895 - Joseph Antony Lazarus -
Vs- A. J. Francis.
15. AIR 1951 Mys 53 - Thompson -Vs- J. A. Gordon
22. In view of the rival contentions, following points would arise for consideration:
(1) Whether finding recorded by the Trial Court that Ex.D.3 is free from suspicious circumstances, therefore,, the plaintiffs are not entitled to share in item Nos.1 and 3 of the suit properties is just and proper?31
(2) Whether the plaintiffs have made out a case that Ex.D.3 Will dated 08.03.1999 executed by Ramanna in favour of the first defendant is surrounded by suspicious circumstances and therefore, the same is not binding on the plaintiffs?
(3) Whether the impugned judgment is suffering from legal infirmity or perversity insofar as denying the right of the plaintiffs in respect of item Nos.1 and 3 of the suit schedule properties?
(4) What order?
23. Before the Trial Court in order to establish the case of the plaintiffs, first plaintiff - Gopalakrishna got examined himself as P.W.1. P.W.1 filed an affidavit in lieu of his examination in chief wherein he has reiterated the contents of the plaint in verbatim and relied on the documents referred to supra.
24. In his cross-examination, he admits that defendant No.2 Nagaraj is his elder brother and he is 32 living separately. He admits that second defendant has constructed a separate house from his own earnings. He admits that an understanding has been reached since the eldest brother - Nagaraj has constructed a separate house, item No.1 of the suit schedule property would be divided among three brothers including P.W.1. He also admits that there was an understanding among the brothers that item No.2 of the schedule property would be divided among four brothers equally. He also admits that as per the understanding, second defendant had no share in the suit item No.1 of the property and suit item No.2 of the property is to be divided among the brothers equally by granting 1/4th share. He admits that with that understanding second defendant constructed a house on the site belonging to their mother Smt.Rukmanamma and started residing there. He admits that even though second defendant was residing separately, he used to often visit Ramanna, whenever he was not well. He voluntarily stated that all four 33 brothers looked after their father - Ramanna when he was not well. He admits that on account of surgery undergone by Ramanna and having regard to the severity of deceases, memory of Ramanna had been reduced. He also admits that because of his memory loss, he was not in a position to identify the persons properly and he was not able to consume the food by himself without assistance of others. He admits that at the time of surgery, first defendant was not in Bengaluru as he has working in Munirabad. He admits that wife of first defendant used to attend her job in the morning to evening and therefore she was not in a position to look after Ramanna when he was hospitalized. He admits that when Ramanna was admitted to Mallige Nursing Home, his health condition was very bad and he was not in a position to move out of the bed. He has answered that earlier to admitting in the hospital, Ramanna did not discuss anything about sharing of the property. He admits that Ramanna did not have any intension to 34 settle the property in favour of any single son. He has answered that on 08.03.1999 health of Ramanna was very much deteriorated and he was not in a position to consume food or read the books. He has answered that his wife did not intimate him on 08.03.1999 about Ramanna has moved out of the house. He admits that Ramanna died on 15.03.1999 when he was in Coma stage. He has answered that Ex.D.3 is a concocted document. He further answered that on 14.06.1999 P.W.1 and second plaintiff received notice from Corporation and Revenue Department for change of khatha in respect of suit property and called for objection and it is then he came to know about Ex.D.3.
25. In his cross-examination on behalf of first defendant, it is elicited that mother of P.W.1 did not bequeath the site where defendant No.2 is now residing after constructing a house. He has admitted that it was an arrangement made among the brothers and 35 therefore, he built a house belonging to mother of P.W.1 and residing there. He denied the suggestion that house was also belonging to mother of P.W.1.
26. In his further cross-examination, he has answered that a document was prepared in the year 1969-70 soon after his mother was passed away with regard to the said arrangements and he was studying in 10th standard at that time and he has not seen the document. He admits that second defendant was residing in shed prior to 1992. He admits that second defendant was working as Junior Engineer in BESCOM and his marriage was performed in the year 1978. He admits that second plaintiff was working in Hindustan Machine Tools and he is a Bachelor. He admits that there is a room in the suit item No.1 of the property and to access the said room there is outside the house within the compound. He admits that since 1981, P.W.1 is in occupation of the said room and so also his wife is using 36 the said room. He denied the suggestion that his wife was not at all attending the house hold work despite advice given by Ramanna. He admits that first defendant has got two daughters. He denied the suggestion that he has harassed Ramanna demanding the share in the property. He admits that since defendant No.2 had no female issues, he fostered the second daughter of first defendant. He denies the suggestion that he has strangulated his father during the year 1995 with the help of a rope. He denies the suggestion that his father filed a complaint against him on 18.11.1995 as per Ex.D.39. He denied the suggestion that relationship between him and his father was strained. He has answered that medical bills of Ramanna were paid by all the four brothers. He admits that when first defendant was at Munirabad, his wife and wife of first defendant were looking after Ramanna. He admits that on the back side of Ex.P.3, name of his father Ramanna is appearing.
37
27. He has also answered that he has produced the photocopy of Radio therapy of his father to show that after surgery, health condition of his father had become worse. He admits that on 11.03.1999, his father was admitted to Mallige Hospital and he was treated in Intensive Care Unit. He admits that his father had purchased many shares and debentures and some of them are in the joint names of Ramanna and first defendant. He admits that in many shares and debentures, it is also mentioned that first defendant is the nominee of Ramanna. He also admits that name of P.W.1 or second plaintiff or second defendant were not included either in the shares or debentures. He denied the knowledge of having fixed deposit in Syndicate Bank, Vijayanagar Branch in a sum of Rs.1,50,000/- in the joint names of Ramanna and the first defendant. However, he has answered that said deposits were in the names of all four brothers till 1998 and thereafter first defendant had got it transferred in the joint names 38 of himself and Ramanna. He admits that earlier to shifting his residence to Vijayanagar, all of them resided in a house at Cottonpet and they used to buy milk from one Channappa (D.W.2). He admits that one Dr. R. Narasimhan was the family physician. He has also admits that when first defendant was working in Munirabad, used to visit Bengaluru every weekend and as such, he has visited on 06.03.1999. He answered that his father had close friends namely; Nagaraj, Vittalrao, Mukundrao and Kandaswamy, who were the employees of Hindustan Aeronautics Limited. He admits that among them Nagaraj used to visit their house often. Likewise among them, Nagaraj Ashwathappa and Ramanna were also used to visit house of Ramanna.
28. He further admits that on 11.3.1999, at about 9.30 am Ramanna had severe breathing problem. Witness also answered that on 06.03.1999 itself he had breathing problem and therefore, he had taken treatment at Gayathri Nursing Home. He admits that on 11.3.1999 at about 4.00 39 pm he was taken to the Gayatri Nursing Home at the first instance and then he was taken to Jayadeva Hospital at about 8.15 pm. But since he was not admitted in Jayadeva Hospital, they were constrained to take Ramanna to Mallige Hospital at about 10.30 pm. He admits that there was no surgery conducted in Mallige Nursing Home, but he was given treatment in the Intensive Care Unit.
29. He admits that katha of the suit schedule property was transferred in the name of first defendant despite objections filed by the plaintiffs and second defendant by over ruling the objections.
30. He admits that there is a overwriting in Ex.P.11. He denied that Ex.P11 is concocted for the case. He admits that second defendant shifted from Vijayanagara to Rajajinagar in the year 1992. He also admits that in the year 1998, his mother was not alive and Ex.P6 is the ration card for the year 1988. He admits that Yashodamma, Ravi and Mukunda were not residing with 40 Ramanna and despite the same, in Ex.P6, their names have shown.
31. He denied the suggestion that PW1, plaintiff No.2 and second defendant hatched a plan to deprive the absolute rights of the first defendant in item No.1 of the suit property.
32. Sri N.R. Lakshman S/o. late N. Ramanna, who is the second plaintiff is examined as PW-2. He also deposed in line with the examination in chief of PW-1 by filing an affidavit practically re-iterating the contents of the plaint and he has produced the medical certificate issued by Raghavendra Clinic, Medical identity book certificate from Hindustan Machine Tools for re-imbursement of medical expenses, medical certificate issued by the Kidwai Institute of Oncology and pay slips which he identifies as Exs.P20 to 31.
33. In his cross examination, on behalf of second defendant, he admits that house in occupation of the 41 second defendant is not the subject matter of the suit. He admits that the said site belonged to his mother for construction of the house in item No.2 of the suit property and all the sons of Ramanna are having equal share in the property.
34. In his cross examination on behalf of the first defendant, he admits that site on which the second defendant has constructed a house, which is item No.2 of suit property, originally belonged to his mother and he admits that possession of the said site was taken by the second defendant after the demise of his mother. He admits that plaintiff No.1 had no issues. He also admits that first item of the suit property is the self acquired property of late Ramanna. However, he denied the suggestion that in the year 1995, the first plaintiff attempted to commit the murder of Ramanna. He denied that Ex.D39 complaint is given by Ramanna. He answered the signature found on Ex.D.39 is concocted signature of Ramanna. He admits that in paragraph No.5 of the plaint, 42 it is mentioned that first defendant was highly loved by Ramanna. He admits that second surgery took place to Ramanna in Kidwai Hospital in respect of cancerous cells in his leg and he was discharged on 15.4.1988. He admits that first defendant was at Bengaluru then. He admits that Ex.P4 is the sanction letter for medical expenses of Ramanna in favour of first defendant. He admits that it is mentioned in the plaint that on 6.3.1999 first defendant had come to Bengaluru. He denies the knowledge of Ex.D3 registered in the office of Sub Registrar Srirampura. He admits that after second surgery and discharge from the Hospital, till 11.3.1999 his father was not an inpatient in any Hospital. He admits that Ex.P3 there is a mention that Ramanna had breathing problem. He admits that in the year 1999 he was working in Hindustan Machine Tools and he used to leave the house at about 8.15 am and return at about 5.00 pm. He admits that on 6.3.1999 also he returned home at about 5.00 p.m. He admits that on 7.3.1999, the doctor attached to Hindustan Machine Tools, had examined his father Ramanna and told that his 43 medical condition was bad and advised to take him to the Hospital. Since it was a Sunday, they did not take him to the Hospital. He answered that on that day, Ramanna had been treated by the doctor attached to the Hindustan Machine Tools.
35. PW-3 is the wife of first plaintiff. She has filed an affidavit and stated that she was looking after house hold work and during the life time of her father-in-law (Ramanna) and continued to look after the house hold work. She has stated that after the second surgery in the year 1999, Ramanna could not walk without the help and look after him in the house. She has stated that the first surgery was on the right hip in January 1998 and as such, Ramanna was not able to walk properly. She has further stated that Ramanna was suffering from pain in the leg, breathlessness and he was not fully conscious. On 6.3.1999, Doctor from Gayathri Clinic had visited the house and treated him and on 7.3.1999 Dr.Anand Mugali had visited the house and has treated Ramanna. She has 44 further stated that on 8.3.1999 at about 10.30 a.m., first defendant - Jayaram took Ramanna outside the house stating that he was taking him to Hospital in an Autorickshaw and returned house at about 2.00 pm.
36. In her cross examination by the second defendant, she has admitted that she did not accompany the first defendant when Ramanna was taken in an Autorickshaw on 8.3.99 and on that day itself, he had lost consciousness and therefore, was unable to understand the worldly things.
37. In her cross examination on behalf of the first defendant, she admits that her husband (first plaintiff) was working in ITI. She admits that wife of the second defendant is also working. She has answered that herself and wife of first defendant were looking after household work. She denied that she did not look after deceased Ramanna nor attended any household work. She has answered that on 8.3.1999, at about 10.30 am, her father- in law (Ramanna) had no conscious and he was taken in 45 an Autorickshaw to the Hospital. She has answered that earlier to 8.3.1999 itself her father-in-law had breathing problem. She denied the suggestion that there was no ill- health to Ramanna from 6.3.1999 to 8.3.1999. She has answered that on 8.3.1999 first defendant was in Bengaluru applying leave.
38. First defendant got examined himself as DW-1. He has filed his affidavit reiterating the contents of the written statement as his examination in chief. He also relied on the documentary evidence namely; sale deed dated 18.05.1977, katha certificate related to item No.1 of plaint schedule, will dated 08.03.1999, letters, katha certificate related to suit item No.1, tax paid receipt dated 03.05.2002 related to item No.1 property, carbon copy of of the representation given by the first defendant to his employer of the plaintiff, the transfer orders dated 03.06.1998 and 15.06.1998, shares, debentures, certificate of UTI, copy of legal notice dated 19.07.2000, postal acknowledgement for having served the legal notice 46 on plaintiff No.2 and reply notice caused by the plaintiff to him.
39. In his cross examination, on behalf of the plaintiffs, he admits that he is working as an employee in Syndicate Bank and his wife is working as clerk in National Insurance Company. He admits that his mother died on 1.4.1966 when he was aged 13 years. He admits that first plaintiff has no issues and since all other persons in the house were working PW-3 Vimala was all alone in the house and used to attend the house hold work. She admits that there is a common kitchen in the house and they used to dine together. He also admits that there is no difference of opinion among the brothers. He admits that he is not an eye-witness to the alleged incident of first plaintiff tried to strangulate his father. He has answered that he visited the properties, but he did not accompany Ramanna for lodging the complaint. He admits that his father did not lodge any complaint on the alleged day of incident, but he has given it on the next day. 47
40. He denies the suggestion that signature of Ramanna on Ex.P39 is not his signature. He admits that Shivaprasad is colleague of deceased Ramanna. He denies that Exs.D38 and D.39 are concocted documents. He admits that in June 1998 he was working in Syndicate Bank Hosapete Branch. He answered that he came to know about the Will after on the 11th day ceremony of his father from Ashwathappa. Ashwathappa's house is situated half a kilometre from their house. He admits that Ashwathappa had a grocery shop and his father used to visit Ashwathappa's shop often. He has answered that Ashwathappa brought the will from the registered office after collecting the receipt from him. He admits that Exs.D14 to 33 were all kept in the Almirah by his father and only in those share certificates he has been shown as nominee and not in other share certificates. He admits that he got transferred Ex.D14 on to his name. He has answered that when his father was taken from the Hospital on 11.3.1999, the key of the Almirah was handed over by Ramanna but did not mention that he has executed a will. 48 He has stated that receipt for having registered the document in the sub Registrar office was found in a hand bag which was kept in the Almirah along with bank pass book and cheque book. He admits that in March 1999 he was working as employee in Syndicate bank Munirabad Branch, which is situated 335 kilometres far away from Bengaluru and he returned on 6.3.1999. He has answered that every weekend he used to visit Bengaluru and return on Sunday evening back to Munirabad and as such he visited Bengaluru on 6.3.1999. He admits that in the event, if he does not return to the duty on ensuing Monday, he was required to apply for leave to the Bank. He admits that after return to Bengaluru on 6.3.1999, he stayed in Bengaluru upto 17.3.1999. He has answered that on 11.3.1999 at about 8.00 pm his father had handed over the keys of Almirah and earlier to that Ramanna himself was operating that Almirah. He admits that at about 7.30 pm his father had severe breathing problem, flum formation in the chest region and therefore, he was shifted to Gayathri Nursing Home and doctor at Gayathri 49 nursing home examined him and told him that it is not breathing problem but it is problem relating to heart and therefore, referred him to Jayadeva Hospital. However, doctors at Jayadeva Hospital, on examination, told that Ramanna had no health issues relating to heart and told them to shift him to Victoria Hospital and accordingly, he was taken to Victoria Hospital and then to Mallige Medical Centre. He admits that he was admitted to Mallige Medical centre on the same day and Ramanna died on 15.3.1999. He has answered that he has got all medical records with regard to health condition of Ramanna and he can produce the same. He pleaded ignorance about the name of the doctor who treated Ramanna in Mallige Medical Centre. He admits that earlier to January 18 of 1988, his father had an abscess in the right thigh, on biopsy, it was detected that he had developed cancerous cells and therefore, he had taken chemotherapy. He has admitted that Ex.P1 is the photocopy of the discharge summary issued by Kidwai Hospital. He has answered that there is a surgery conducted by Kidwai Hospital and second defendant has 50 taken reimbursement of the expenses in that regard. He has stated that the medical bills of Mallige Medical Centre was to the tune of Rs.2,70,000/- and he does not know how much reimbursement P.W.2 has got in that regard. He has answered that on 9.15 am, on 8.3.1999 he had left his house to the office of his wife and at that juncture, his father was all alone in the house and he returned at about 1.00 pm. He admits that Channappa (DW2) is known to his father for 40 years and they were friends and class mates from class 1 to class 11 during their child hood days. He admits that Channappa was working in Veerashaiva co-operative society and he was earlier residing in Vijayanagar and now residing in Vidhyaranyapura. He admits that the groceries required for the house used to be brought by Ramanna from Veerashiva co-operative society. He admits that he has not intimated Channappa about the Will when Channappa attended the funeral ceremony of his father. He has further answered that in the second week of May, 51 Ashwathappa brought Will from sub-Registrar office, but he did not accompany Ashwathappa.
41. Another attesting witness to the Will by name Neelakantappa is a family friend and he was also working in the Syndicate Bank. DW1 admits that the said Neelakantappa was working in Gandhinagar Branch and he is his friend. He admits that Neelakantappa also did not attend the funeral ceremony of his father or the 11th day ceremony. He admits that after 15 days of death of his father, he met Neelakantappa and at that juncture, Neelakantappa told that Ramanna has executed a will. He admits that his father used to transact in Gandhinagar Branch and therefore, Neelakantappa and Ramanna became friends. DW1 admits that he was colleague of Neelakantappa from 1978.
42. Yet another attesting witness to the Will is one Dr. R.Narasimhan. DW1 admits that Dr.R.Narasimhan is having a medical clinic about two to three furlongs away from their house. He admits that house of 52 Dr.R.Narasimhan is situated four to five roads away from suit item No.1. He admits that he used to visit his clinic often. However, DW1 denied the suggestion that with the active collusion of Channappa, Dr. R. Narasimhan and Neelakantappa, he got concocted the Will taking advantage of the ill health of Ramanna.
43. He admits that in Ex.D3 executant Ramanna was identified by one Shivajirao who is none other than his colleague and he was working at Syndicate Bank in JC Nagar branch. DW1 answered that Shivaji Rao met Ramanna in temple at Gavipuram guttahalli and he was also introduced Ramanna to Shivajirao in JC Nagar Road Branch. He admits that Shivajirao or Dr. R. Narasimhan never visited their house at Vijayanagar. He further admits that there is no ill-will between his father and second plaintiff. He admits that suit item No.2 is in the name of second defendant Nagaraju and there is no will executed by his mother, but he has not asked any share in second item of the suit property. He admits that none of 53 the shares are purchased by him and all the shares comprising in Ex.D17 to D33 are all purchased by his father. He further admits that in the personal account of Ramanna a sum of Rs.5,000/- was there and in the joint account of himself and his father balance of Rs.12,000/- was there and apart from that Fixed Deposit in the name of his father to the tune of Rs.1.00,000/- to 1.50,000/-. He admits that only with regard to the Vijayanagar house there is a mention in the Will. He admits that there is a mention in Ex.D11 about the health condition of Ramanna is serious. He admits that he did not take his father to the Hospital regularly. He admits that on 6.3.99 he arrived Bengaluru at about 9.00 pm and after attending the temple on 7.3.1999 he visited to the home. He has answered two three days after his father's death, he went to Munirabad. He has answered that between 6.3.1999 to 11.3.1999, he took his father to Kidwai Memorial Hospital on 10.3.1999, since his father has complained leg pain. He denied that on 8.3.1999, he was very much present in the house and he took his father in an Autorickshaw. He 54 admits that on 11.3.1999 himself, his wife second plaintiff and second defendant took Ramanna to the Hospital for admitting him. He admits that he was present when his father was admitted as inpatient. He admits that till death, his father was treated in intensive care unit in Mallige Medical Centre he has further answered that before admitting him to Mallige Medical Centre, he consulted Dr. R. Narasimhan over phone about the health of his father.
44. Channapppa one of the attesting witnesses to the Ex.D.3 is examined as DW2. He has filed affidavit that he used to visit the house of Ramanna and as such on 7.3.1999 at about 6.30 pm Ramanna telephoned him with a request to present at 9.30 am on the next day to attest the will. Accordingly, he visited his house at 9.30 am on 8.3.1999 and in the house of Ramanna another person was present and except that person there was nobody in the house. Ramanna introduced the other person as Rangaswamy, Advocate who prepared the will. Within five minutes thereafter, Neelakantappa came to the house. He 55 has enquired Ramanna as to why he is asking to attest the witness, Ramanna told that he is his family friend and therefore, he had asked him to attest the will. He further deposed that Ramanna signed the will himself and Neelakantappa and Dr R. Narasimhan also signed the will as attesting witnesses and thereafter, Kandaswamy signed the will. He further deposed that at the time of executing the will on 8.3.1999 Ramanna was active, alert, hale and healthy and executed the Will out of his volition. He identified his signature and signature of other witnesses.
45. In his cross examination, he admits that first defendant is his classmate and family friend. He further answered that himself and first defendant studied upto 10th standard and at that juncture, he was residing in Vijayanagar. He has further answered that first defendant father was buying milk from the dairy owned by him and therefore, he knew them. He has further answered that himself and Ramanna used to discuss about the family matters and he used to advice him and guide 56 him. He admits that before his death, he had undergone surgery to his leg. He has answered that he discussed about the execution of the will prior to his surgery. He has further answered except first defendant, his other children are not caring for him and his medical treatment. He has answered that first defendant alone is caring for him and since he had got two daughters, Ramanna intended to bequeath his self acquired properties in favour of the first defendant.
46. He admits that Neelakantappa is also an employee of Syndicate Bank and he had an account in Syndicate Bank and therefore, he knew Neelakantappa. He has answered that he knows the contents of the Will and the contents of the Will was read over by Ramanna in his presence and thereafter, he handed over the will for reading.
47. Another attesting witness Neelakantappa is examined as DW-3. He filed an affidavit wherein he has stated that on 7.3.1999 around 11 am., Ramanna 57 telephoned to him and requested him to be present on 8.3.1999 at 9.30 am for attestation of the Will. Accordingly, he reached the house of Ramanna. At that time, Ramanna and two other persons were present and Will was read over in Ramanna's house. Dr. R. Narasimhan entered the house. Later, Channappa asked Ramanna what is the will about and Ramanna read over the will and thereafter, Ramanna signed the will. He also identified his signature on the will as Ex.D3(e).
48. In his cross examination, he has answered that Ramanna used to visit Syndicate Bank, Gandhinagar Branch and therefore, he is acquainted with him through first defendant. He has answered that he used to visit Ramanna once in 22 days or 44 days. He admits that he used to visit the house of Ramanna to meet Ramanna and not to meet first defendant. He admits that Channappa used to visit his bank along with the first defendant and therefore, he is acquainted with DW2. He failed to identify the signature marked at Ex.D3(h). He has answered to a 58 specific question that whenever he visited to the house of Ramanna, family members of Ramanna used to be there in the house; but Ramanna alone used to come out and spoke to him. He has answered that he knew Dr. R. Narasimhan since 1978 as he is his family doctor. He admits that he has not seen Kandaswamy, Advocate who drafted Ex.D3 earlier to 1999.
49. Dr. R. Narasimhan is examined as DW-4. He deposed that he filed affidavit that he received a call from Ramanna asking him to meet him on 8.3.99 at about 9.30 am accordingly, he visited the house of Ramanna where he noticed the presence of DWs.2 & 3 and Advocate. He also deposed about Ramanna executing the will.
50. In his cross examination he admits that he is acquainted with first defendant about 8-9 years and so also Ramanna. He has stated that Ramanna was his patient and first defendant and his family regularly used to visit him. To a specific question whether other sons of Ramanna also used to visit him, he has answered that he 59 is not aware of other sons of Ramanna. He admits that he is aware of Ramanna undergoing surgery of tumour on his right thigh. He has answered that he was not knowing the treatment taken by Ramanna post surgery. He admits that after surgery, Ramanna had restricted movements. He answered that Ramanna needed assistance of somebody to move around. He admits that neither first defendant nor Ramanna did not consult him on 11.3.1999 or on 12.3.1999. He admits that on 12.3.1999 he did not receive any call from first defendant to attend the health condition of Ramanna. He admits that fluid collection between the chest wall and the lungs in the pleural cavity, effusion causes breathlessness, if it is massive that causes breathlessness. If the pleural cavity contains 1500 ml of fluids that is massive effusion. He admits that he had no previous acquaintance of Channappa, Advocate Kandaswamy.
51. Scribe of disputed Will Kandaswamy who is an Advocate is examined as DW5. He deposed that on 60 6.3.1999 when he was standing near Advocates Association Building at around 12.00 and 12.30 pm Ramanna met him and he had an intention to execute Will. He had further instructed and he got the Will typed on stamp paper. He had shown it to Ramanna and Ramanna was satisfied the contents of the Will and requested him to come over to his house. Accordingly, he visited Ramanna's house on 8.3.1999 and Ramanna was all alone in his house. Within few minutes a dark complexioned and a short structured person entered the house of Ramanna and thereafter, the Will was read over by Ramanna and all the persons signed the Will and he has also signed the Will. In his cross examination, he has answered that he is practicing a lawyer after retirement from BMTC. He has answered that first acquaintance of Ramanna to him was on 6.9.1999 near the Bar Association in the court complex. He admits that Ramanna has not brought any documents for the purpose of drafting the Will. He admits that Ramanna gave instructions and made a note for drafting the Will and same is not with him. Job typist typed the will 61 and he does not know the name of job typist. To a specific question whether he has enquired Ramanna about the other movable and immovable properties and bank accounts, he answered that Ramanna told only with regard to the immovable Property mentioned in the will. He further answered that he did ask Ramanna as to show the title deeds, but Ramanna told tilte deeds are at home and paid Rs.500 as fees and Rs.100 as transport charges. He has answered that he does not remember how many Wills he has drafted as an Advocate. To a specific question that why Ramanna asked for his presence for the purpose of the registration of the Will, witness answered if he visits the sub Registrar office, he will get more money.
52. The contents of disputed Will Ex.D.3 reads as under:
"THIS SALEDEED executed this the 18th day of May one thousand nine hundred and seventy seven by the Karnataka Housing Board represented by the Housing Commissioner thereof Sri.K. B. Murarappa, hereinafter called the first party which term shall be deemed to include his successors office in favour of 62 Sri.N.Ramanna, son of Sri. Nanjappa, aged about 37 years, residing at No. 1232, Hosahally Extension, 9th Main Road, Bangalore-560 040, hereinafter called the second party which term shall be deemed to include his or her heirs, assigns, legal representatives and administrators.
WHEREAS the first party acquired the schedule site from the Bangalore City Improvement Trust Board and allotted the same to the second party under the Low Income Group Housing Scheme, also constructed the house thereon at the first party's cost under certain terms and conditions agreed to by the second party and whereas the second party has paid to the first party all the amounts and charges due by the second party including supervision charges and interest charges, cost of site and building and there is nothing more due from either party, whereas the second party is desirous that the first party should execute the deed of sale of the schedule site and house for the sum of Bs.14,509-20 (Rupees fourteen thousand five hundred nine and paise twenty only) being the site value and the cost of construction of the building and the first party has agreed to do so at the cost of the second party.
NOW this deed of sale witnesseth that in consideration of the sum of Rs.14,509-20 (Rupees fourteen thousand five hundred nine and paise 63 twenty only) paid by the second party, the receipt whereof the first party hereby acknowledges. The said first party hereby conveys t second party absolutely by way of sale all that site and dwelling house built thereon by the first party and all the right, title and interest which the first party possess therein described in the schedule to this document free of encumbrances., The first party has this day delivered possession of the schedule property to the second party to hold the same by the said second party absolutely.
Schedule of site and house built thereon Site No.1232 block...... extention...... Hosahally measuring east to West 35 feet and (10.66 mtr) North to South 50 feet and bounded by (15.24mtrs) NORTH : Road SOUTH : Site No.1271 EAST : Site No.1233 WEST : Site No.1231 In witness thereof the first party has set his hand to this deed this 18th day of May One thousand nine hundred and seventy seven in the presence of the following witnesses.64
Sd/-
(K.B.Murarappa) Housing Commissioner Karnataka Housing Board Bangalore Witnesses:
1. Sd/- (K.Devappa Alva), additional Accounts Officer Mysore Housing Board.
2. Sd/- (N.Thimmarayappa) KHB, Bangalore."
53. In the case on hand, the entire dispute among parties hinges upon Ex.D.3. Trail Court has believed Ex.D.3 and dismissed the suit of the plaintiffs in respect of suit item Nos.1 and 3 of the property. As referred to supra, appellants have challenged the validity of the judgment insofar as the denial of the share in the suit item Nos.1 and 3 of the property.
54. Further the Prayer in the appeal reads as under:
"Wherefore the appellants prays that this Hon'ble Court be pleased to set aside the judgment and decree partly decreeing the suit, passed on 25.02.2010 in O.S.No.4813/2000 on the file of 1st 65 Additional City Civil Judge, Bangalore and decree the suit and order partition and separate possession of all the suit properties, with costs throughout, in the interest of justice and equity."
55. Suit item No.3 is the movable properties. While answering issue with regard to suit item No.3, the learned Trial Judge has held that in respect of shares, there cannot be any order under Hindu Succession Act. Learned Trial Judge has also held that the partition in respect of suit item No.3 of the suit properties is out of the pleadings.
56. Learned counsel for the appellants attacked the validity of Ex.D.3 in the light of legal principles enunciated in the aforesaid judgments and contended that Ex.D.3 is surrounded by suspicious circumstances. He emphasised that attestors of the Will namely; Neelakantappa, Channappa and Dr. R. Narasimhan, are all interested witnesses inasmuch as Neelakantappa is the colleague of first defendant, Channappa is the classmate of 66 first defendant and Dr. R. Narasimhan is the family doctor of first defendant.
57. He further contended that one Shivaji Rao has identified the Ramanna before the Sub-Registrar Office as is admitted by D.W.1 is none other than the junior colleague of the first defendant and therefore, there is no independent witness to prove Ex.D.3 and the same has not been properly appreciated by the learned Trial Judge.
58. Per contra, Sri K.V. Shyam Prasad, learned counsel for respondent No.1 contended that there is no bar for a colleague of a propounder or a family doctor of a propounder or a close friend of a propounder to attest the Will and there is no bar under law parents of the propounder. He also pointed out that only on the ground that attesting witnesses are friends or colleagues, their capacity to attest a witness cannot be doubted and sought for dismissal of the appeal.
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59. Before Will can be accepted as genuine it is settled principles of law, that the Court has to consider whether the Will has passed through five stages, often called as "Panchapadi".
60. In this regard this Court places reliance on the judgment of this Court in the case of J.T. Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, wherein it is held as under:
"(A) INDIAN SUCCESSION ACT, 1925 --
SECTION 2(h) -- Will -- Proof of -- Legal requirements -- Duty of the Court -- Five steps to be considered -- HELD, Under the Act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, the first step is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document -- FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual -- The third step would be to find out whether the 68 testator was in a sound state of mind at the terms of executing the Will -- The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will
-- The fifth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. (B) INDIAN SUCCESSION ACT, 1925 --
SECTION 63 R/W SECTION 68 -- Execution of a Will under -- Attestation and Execution -- Procedure -- HELD, The Will that is executed is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The Will is a document required by law to be attested. The execution of Will must include both execution and attestation. "Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail -- The Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that both of them should be present at the same time -- FURTHER HELD, Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63(c) of the Act. Therefore, 69 the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whether such a Will is registered or not registered, in the eye of law it makes no difference. Even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law -- It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, as such it is valid and enforceable."
The Hon'ble Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, wherein it is held as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. 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 70 and 68 of the 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 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 71 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."
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily 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 72 would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
61. Among the 'Panchapadi', first step is about the document produced before the court, prima-facie do not satisfy the legal requirements to hold Will as genuine. Second step is whether any other legal heirs are disinherited. Third step is whether the testator was in sound state of mind in executing the Will. Fourth step is whether any suspicious circumstances surrounding the execution of the Will. The fifth and last step is the Will executed in accordance with Section 63 of the Indian Succession Act r/w Section 68 of the Indian Evidence Act.
62. Applying legal principles of the aforesaid judgments to the facts of the case and Ex.D.3 is subjected to the test as referred to supra in the above judgments, it is crystal clear that executant Ramanna had two surgeries in his right thigh as a part of treatment for cancerous cells in January 1998 and April 1998. It is found in the 73 evidence as referred supra, that first surgery on the hip region. It is also found from the cross-examination of P.W.3 Vimala that after the surgery, Ramanna was not in a position to move properly said fact is also admitted by Dr. R.Narasimhan who is examined as D.W.4.
63. In other words, Ramanna needed assistance of somebody for walking. It is also found from records that the health condition of Ramanna became fragile after two surgeries and on account of Radiotherapy and Chemotherapy.
64. It is borne out from the records that defendant No.1 is the last son of Ramanna who was working at Syndicate Bank, Munirabad Branch which is situated about 330 kms away from Bengaluru. Material on record also discloses that first defendant used to visit Bengaluru every weekend. Likewise, he visited on 06.03.1999 to Bengaluru at about 9.00 pm. P.W.3 Vimala being the wife of first plaintiff, was the only person who used to look after the house hold activities inasmuch as wife of the first 74 defendant was working in National Insurance Company as a Typist.
65. Obviously if PW3 who could throw light as to what was happening in the house. She has specifically answered that on 08.03.1999, the first defendant took Ramanna outside the house in an Autorickshaw in the guise of taking him for a treatment. It is an admitted fact that all the members of Ramanna's family lived in joint family and used to have a common kitchen. First defendant has admitted that there is no illwil amongst the brothers. Admittedly, second defendant is residing in a separate house which was constructed on the site owned by wife of Ramanna. Material on record also discloses that Ramanna also used to visit on Friday evening and used to spend Saturday and Sunday and get back to his work on Monday at Munirabad. But, surprisingly first defendant did not return to Munirabad on the next Monday i.e., 08.03.1999 as per usual practice. Why he decided to stay on 08.03.1999 in Bengaluru is not explained by him. No 75 details regarding his leave application are furnished to Court. Under Ex.D.3, the suit item No.1 of the property is exclusively bequeathed in favour of first defendant. No special reasons are forthcoming for such bequeath from the contents of Ex.D.3 as referred to supra.
66. First defendant has admitted that Ramanna loved all his children equally. Material evidence on record also shows that Lakshmana who is the second plaintiff, had met the medical expenses of Ramanna and got it reimbursed from his employer. Material evidence also discloses that medical expenses in respect of surgery under gone by Ramanna had been met equally by all the brothers. When such is the material evidence, exclusion of other sons of Ramanna from the bequeath raises sufficient doubt.
67. It is no doubt that mere exclusion of the kith and kin itself would not be a suspicious circumstance. But, in a given case, without any proper reasons, if other siblings are excluded, Court has to test the genuineness of 76 the Will to rule out the possibilities of suspicious circumstance.
68. In the case on hand, the second defendant did not have any issues and first defendant having two daughters, Ramanna executed the Will in favour of the first defendant, is the answer offered on behalf of the first defendant. However, why other sons of Ramanna are excluded is not explained by the first defendant.
69. Further, material on record shows that one of the daughters of first defendant is being fostered by the first plaintiff. If that is so, exclusion of other children by Ramanna is not proper.
70. No doubt, while appreciating the contents of the Will, the Court cannot view it from the angle of a common man or a person sitting in arm chair; but must step into the shoes of the testator and genuineness of the Will and bequeath made thereunder is to be looked into. But, in the case on hand, even if stepping into shoes of 77 Ramanna, exclusion of other sons of Ramanna being not explained in the contents of Will, the bequeath is unreasonable.
71. An explanation is no doubt sought to be made on behalf of the first defendant that, first plaintiff tried to strangulate Ramanna and there was a Criminal Case registered at Vijayanagara Police Station. The same is disputed and no action is taken in respect of said criminal case. Assuming that the first plaintiff is a person who had a bad character, denial of the shares to other sons of Ramanna is not explained on behalf of the first defendant. Further nothing prevented Ramanna in mentioning such incident for denying share to first plaintiff.
72. The second suspicious circumstances that is put forth on behalf of the plaintiffs is that health condition of Ramanna. Admittedly, after under going the surgery, Ramanna had bad health. Material evidence on record shows that he was admitted to the hospital on 11.03.1999 with breathing problem. He was taken to Gayathri Nursing 78 Home at the first instance and at the advice of the doctors, he was taken to Jayadeva Heart Care Centre and from Jayadeva to Victoria Hospital and finally, he was admitted to Mallige Medical Centre as an inpatient. Material records also discloses that Ramanna succumbed to the illness on 15.03.1999.
73. If a person is suffering from ill health on 11.03.1999 and was required to be treated in Intensive Care Unit, one can imagine what could have been the health condition of that person two to three days prior to his admission in the hospital. P.W.2 has stated that Dr. Anand Mugali, attached to Hindustan Machine Tools, visited the house of Ramanna on 07.03.1999 and treated Ramanna. Except suggestions that whether Dr. Anand Mugali is still practicing or not or he did not treat Ramanna on 07.03.1999, no other material evidence is placed on record to show the health condition of Ramanna.
74. D.W.4 Dr. R. Narasimhan is the family doctor. He should have answered that health condition of 79 Ramanna was proper on 06.03.1999 or 07.03.1999. The history of the health condition recorded in Mallige Nursing Home is not produced by the propounder of Ex.D.3 to access the health condition of Ramanna.
75. Therefore, when first defendant has propounded that the Will executed when Ramanna was hale and healthy condition, it is for him to prove with cogent evidence that Ramanna had sound health condition as on the date of the executing the Will i.e., 08.03.1999.
76. Material evidence on record is hardly sufficient to hold that physical and mental health condition of Ramanna was sound as on the date of execution of the Will on 08.03.1999. Mere fact that, Ramanna was taken to the Sub-Registrar office on 08.03.1999 and he has signed there before the Sub-Registrar itself would not be sufficient enough to hold that his physical and mental health condition was fit and he could understand the contents of Ex.D.3 and has subscribed his signature. 80
77. Further, non examination of Shivaji Rao who said to have identified the signature of Ramanna before the Sub-Registrar's Office is a circumstance that goes against the propounder. As such, this Court is unable to accept the contention of the first defendant that Ramanna had the sound physical and mental health as on 08.03.1999 i.e., execution of Ex.D.3, more so, his health condition was deteriorated on 11.03.1999, requiring Ramanna to have treatment in the Intensive Care Unit.
78. Further, it is the case of the first defendant that he was away from the house on 08.03.1999 from 9.00 a.m. to 1.00 p.m. According to first defendant he had gone along with his wife to office of his wife. What is the reason for first defendant to accompany his wife to her office only on 08.03.1999 is not explained by him, nor his wife is examined to establish the said fact. More so, when he was required to attend his bank at Munirabad on 08.03.1999 as per the usual practice as is deposed by first defendant himself.
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79. On the contrary, P.W.3 Vimala says that on 08.03.1999 first defendant took Ramanna in an Autorickshaw in the guise of taking into the hospital and returned in the afternoon. Therefore, the propounder was duty bound to explain his continued leave period in Bengaluru until the death of his father on 15.03.1999. If the health condition of Ramanna was hale and healthy, there would not been any necessity for first defendant to continue the leave or decision to remain in Bengaluru. Material on record does not show that he had not applied leave on 08.03.1999 or on 09.03.1999 or on 10.03.1999 till up to the death of his father on 15.03.1999.
80. Further, attesting Witnesses are not personally acquainted to the executant. Material on record shows that testator had his own friends who are residing very close to his house. Ashwathappa is a grocery store person who had friendship with testator for about 40 years and often Ramanna used to visit his house. So also Ramanna had other friends, but none of them have been made as 82 attesting witness. Even though there is no inhibition under law for anybody to act as an attesting witness, having regard to the fact that, attesting witnesses are either fast friends or colleagues of first defendant, the legal requirements as is found in Section 63 of the Indian Succession Act and 68 of the Indian Evidence Act, in the considered opinion of this Court has not been properly established by the first defendant raising doubt about the genuineness of the Will.
81. Section 63 of Indian succession act reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so 83 placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
82. Section 68 of Indian Evidence Act reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence; [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which 84 has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
83. With the legal requirements enunciated in these provisions are considered in the case on hand, no doubt the propounder of the Will has examined three of the attesting witnesses and a scribe as referred to supra. As such, on record, there is a compliance of above requirements. But, whether the oral testimony of these witnesses are worthy enough of the believed in the facts and circumstances of the case is the question that remains to be unanswered by this court. Admittedly the attesting witnesses are either friends or colleagues of first defendant. It is not in dispute that Channappa is classmate of first defended upto 10th standard. Age group between him and executant is sufficiently large enough that executant would repose confidence on him to attest the will. No doubt Channappa has stated that he was discussing the property matters with executant. It is 85 highly unbelievable that executant would discuss the property matters with Channappa who is aged that of his youngest son. More so when Ramanna had close friends with whom he used to exchange his views practically on everyday. One such person is Ashwathappa. Why Ashwathappa was not called for attesting the witness is a question that remains unanswered.
84. The second attesting witness to Ex.D.3 - Will is Neelakantappa. Neelakantappa is none other than the colleague of first defendant. Both the first defendant and Neelakantappa worked in Gandhi Nagar branch from 1978 to 1991. It is on record that first defendant had introduced Neelakantappa to the testator. However, Neelakantappa being physically handicapped, did not enter the House of Ramanna at any given point of time and his oral testimony is that he used to sit in Autorickshaw and Ramanna used to come out every time and have conversation with Neelakantappa standing in the road and Neelakantappa sitting in the Autorickshaw. It is also highly 86 unbelievable testimony. More so, when Ramanna had severe health conditions after he underwent two surgeries in the right thigh on his hip region for cancerous cells. On the contrary, the material evidence on record shows that Ramanna was not able to move around without the assistance of anybody.
85. If that would be so, how Ramanna alone can come out of the house only to converse with Neelakantappa who is sitting in Autorickshaw is highly improbable. If Neelakantappa was unable to get inside the House of Ramanna for converse with Ramanna, how he could have present on 08.03.1999 for the purpose of a attesting the Will is again a question that remains unanswered. It is the say of other attesting witness and the scribe that Neelakantappa was very much present in the House of Ramanna on 08.03.1999 and thereafter all of them left for Sub Register office at Vijaynagar.
86. Dr. R. Narasimhan is yet another attesting witness. According to first defendant he is the family 87 doctor. It is on record that Dr. R. Narasimhan was treating only first defendant and Ramanna. If that were to be so, when health condition of Ramanna deteriorated to a great extent and when he was required to be shifted to the hospital, as a natural course, Dr. R. Narasimhan would have visited the House of Ramanna and examined his health condition and then advised to shift to the higher medical care. Whereas medical record shows that Dr.R.Narasimhan had not been even intimated about the deteriorating health condition of Ramanna on 11.03.1999 or when he has spent his last days in the Intensive Care Unit from 11.03.1999 to 15.03.1999 till his death.
87. Insofar as the scribe is concerned again the oral testimony of scribe is highly unnatural. Admittedly Kandaswamy started his practice as an Advocate from the year 1988, after his retirement from his previous employment. According to him, he was standing near Bar Association in the Court complex and Ramanna alone 88 approached him and given oral instructions to prepare the Will.
88. Given the health condition of Ramanna, he could not have been permitted to go to the Advocate association all alone. Material on record also shows that none of the family members or friends of Ramanna accompanied Ramanna to meet Kandaswamy on 06.03.1999 for the purpose of preparation of the Will. Admittedly, health condition of Ramanna started deteriorating day by day after the second surgery and Vimala, who is examined as PW3 who is daughter-in-law of Ramanna has not stated that Ramanna went out of the house on 06.03.1999. First defendant returned to Bengaluru from his work place on 06.03.1999 at 9.00 pm.
89. Kandaswamy being a total stranger to Ramanna, took oral instructions from Ramanna and prepared Ex.P3 is highly unimaginable. 89
90. Further a person who is suffering from cancer and had two surgeries and had very delicate health, would venture to visit City Civil Court complex all alone and contacted a stranger for the purpose of the Will and out of memory would reveal the details as to the title No.1 one of the property for the propose of preparation of the Will looks highly artificial.
91. On cumulative consideration of the above evidence on record, no doubt the first defendant who is the propounder of Ex.D.3 is successful in establishing the legal requirements as referred to supra in getting the Will attested by two to three persons and they being examined before the Court and the scribe also been examined before the Court.
92. But, there oral testimony is unnatural and artificial given facts and circumstances of the case. It is also pertinent to note that Will contains only the details of item No.1 of the suit property and nothing else. If a person has decided to execute a Will, especially when he had 90 fragile Health condition, would definitely bequeath all his movable and immovable properties. Referring only to the Item No.1 of suit properties in Ex.D.3 exposes hollowness in the claim of the first defendant.
93. Further, mere registration of the Will itself is not sufficient to be held that will is genuine. Registration would only advance the case of the propounder to the extent that executant has visited the said Sub Registrar Office.
94. In the case on hand on 08.03.1999, according to the propounder he had gone out of the house of to office of his wife along with his wife at about 9.00 am. Attesting witnesses Kandaswamy who is the scribe all visited the house of Ramanna at about 9.30 am on 08.03.1999. Thereafter, all of them said to have been visited the Sub Registrar office for the purpose of execution of the Will. None of these persons were able to show that in fact they visited Ramanna's house on 08.03.1999. Neelakantappa as referred to supra being 91 physically disabled man, Dr. R. Narasimhan who is a doctor got clinic to run, Channappa being a childhood friend and classmate of first defendant, would definitely depose in favour of first defendant in their oral testimony.
95. Shivaji Rao who identified the Ramanna surprisingly did not visit the House of Ramanna on 08.03.1999. Who told Shivaji Rao to visit the Sub Register office for the purpose of identifying Ramanna is also a question that remains unanswered. Shivaji Rao is none other than junior colleague of first defendant.
96. All these factors when viewed cumulatively, though all legal requirements have been met by the first defendant in examining the attesting witnesses and the scribe, the same is hardly not sufficient to establish that Ex.D3 Will is a genuine document.
97. Exclusion of other three sons having not been properly explained by Ramanna in the Will, the propounder cannot improve upon by his oral evidence about the exclusion. In cross examination of first defendant, he has categorically admitted that even on the date of cross 92 examination of first defendant, he had a cordial relationship with his brothers. The theory of first plaintiff attempting to kill of Ramanna by strangulating him having not been proved by placing at least plausible evidence on record, exclusion of other sons of Ramanna in the Will remains reasonless.
98. No doubt, Ramanna had full power to bequeath the property in favour of any persons of his choice. But, the Will being a document proof of which would be considered in the absence of the testator, has to pass through the test of genuineness as aforesaid.
99. In the case on hand, exclusion of other sons of Ramanna is not properly explained with believable reasons either from oral testimony of the first defendant or from the contents of Ex.D3. Therefore, the propounder has failed to pass through fourth step.
100. On cumulative consideration of above evidence on record, this court is of the considered opinion that propounder of Ex.D3 first defendant who is none other than youngest son of Ramanna, has failed to establish that 93 Ex.D3 is a genuine document. In fact the decision relied on by the learned counsel for the first responded/first defendant, principles enunciated is taken into consideration, the "panchapadi" as is enunciated in Thimmajamma's case and J.T. Surappa's case would not advance the case of the first defendant to any further extent in view of aforesaid discussion. There is no dispute as to the principles of law enunciated in other decisions relied on by the counsel for first respondent/first defendant. But, further discussion on the same is unnecessary in the present appeal in view of facts of this case and therefore they are not dealt in detail. However the facts and circumstances discussed at length supra are hard to digest in holding that Ex.D3 is a genuine document whereby the impugned judgement would be sustained.
101. Insofar as item No.3 of the suit schedule items are concerned, admittedly the shares were in the name of Ramanna. No doubt in respect of few of the shares, first defendant has been shown as nominee. So also the joint 94 account maintained contained few sums of money in S.B.Account and a sum of Rs.1,50,000/- to Rs.1,75,000/- had been there in the fixed deposit of Ramanna. Mere nomination would not ipso facto create any rights for a person to receive the proceeds involved in the shares in the fixed deposits exclusively as a owner. Nomination is only a methodology by which the relationship between Ramanna and the companies, banks and financial institutions would come to an end by transferring the proceeds of the shares and the fixed deposits in favour of Nominee. It is settled principles of law nominee holds the proceeds of the shares and fixed deposits as trustee for and on behalf of all the shares.
102. Therefore, the reasoning assigned by learned trial judge that first defendant was entitled to receive the money as his proceeds of shares and the fixed deposits as is detailed out in item number No.3 of the suit schedule.
103. In the considered opinion of this court the trial court did not bestow attention to these aspects of the matter and failed to appreciate the facts and 95 circumstances of the case in its proper perspective, resulting in the impugned judgment is perverse in nature. Resultantly the impugned judgment cannot be sustained in law.
104. In view of the foregoing discussions, point Nos.1 to 3 are answered in the Affirmative.
105. REGARDING POINT NO.4: In view of findings on Point Nos.1 to 3, this Court pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree is set aside insofar as item Nos.1 and 3 of the suit properties are concerned. Further, suit of the plaintiffs is decreed with costs through out, as prayed for.
SD/-
JUDGE MR