Karnataka High Court
Sri. S.B. Ittigi S/O Basappa Ittigi And ... vs Smt. S.V. Sulochana D/O Srinivasa ... on 8 December, 2006
Equivalent citations: ILR2007KAR247, 2007(3)KARLJ129, AIR 2007 (NOC) 710 (KAR.) = 2007 (1) AIR KAR R 467, 2007 (1) AIR KAR R 467, 2007 A I H C 1350, (2007) 3 CIVILCOURTC 376, (2007) 3 KANT LJ 129, (2007) 3 ICC 518, (2007) 56 ALLINDCAS 677 (KAR), (2007) 3 CIVLJ 733
Bench: S.R. Bannurmath, H.N. Nagamohan Das
JUDGMENT
1. This appeal arises out of the judgment and decree dated 27.01.2001 in O.S. No. 6752/1993 passed by VI Additional City Civil Judge, Bangalore city, declaring that the first respondent is entitled for grant of letter of administration of will dated 14.04.1983.
2. For convenience, the parties are referred as per their ranking before the Trial Court. The facts in brief are as under:
3. One Sri. Parappa Kalligud, an Ex-M.L.A. of Bagalkot, is the husband of deceased defendant Smt. Basannavva. Plaintiff contends, that she is a close and intimate companion and well-wisher of Sri. Parappa Kalligud. Plaintiff further contends, that whenever Sri. Parappa Kalligud comes to Bangalore he used to camp in the house of the plaintiff. Sri. Parappa Kalligud had both movable and immovable properties at Bagalkot and Bangalore. Plaintiff contends, that on 14.04.1983 Sri. Parappa Kalligud (referred to as testator) executed an unregistered will bequeathing plaint A schedule properties in favour of his wife - the defendant and plaint B schedule properties in favour of plaintiff. The testator died on 03.04.1985 and he had no issues. After the demise of testator the plaintiff being legatee under the will filed a petition under Section 276 of the Indian Succession Act for grant of letters of administration in respect of plaint B schedule properties.
4. The defendant denied the execution of the will dated 14.04.1983 by testator. She further contends, that the will in question is not genuine testament and that the same is a spurious document. The will is an outrageous of fraud and that the same is not consciously and intelligently executed by the testator.
5. On the basis of the pleadings, the Trial Court framed the following issues for its consideration. They are;
I. Whether the plaintiff - propounder proves the due execution of the alleged will dated 14.04.1983 by late Sri. Parappa Kalligud?
II. What order or relief?
6. The plaintiff examined herself as P.W.1 and one witness as P.W.2 and got marked Ex.P.1 to Ex.P.53. During the pendency of suit the defendant Smt. Basannavva died and her legal representatives are brought on record. The legal representatives of defendant examined two witnesses as D.W.1 and D.W.2 and got marked Ex.D.1 to Ex.D.9. The Trial Court on appreciation of pleadings, oral and documentary evidence passed the impugned judgment and decree declaring that the plaintiff is entitled for grant of letter of administration of will dated 14.04.1983 in respect of plaint B schedule property. Hence, this Regular First Appeal by the defendants.
7. Sri. S. Shekar Shetty, learned Counsel for the defendants contend, that the testator acquired the house property at Bangalore from Bangalore Development Authority under a lease-cum-sale agreement and as such, he was not the absolute owner of it and he could not have bequeathed the same under the will dated 14.04.1983. He further contends, that the will in question has come into existence in suspicious circumstances and execution of the same is not proved. He contends, that the Trial Court committed an error in holding that the will is executed by the testator on the ground that the defendant has not denied the signature on the will. The Trial Court committed an error in not taking into consideration the entire pleadings and the evidence on record. The Trial Court committed an error in comparing the disputed signature of the testator with that of other signatures and holding that they are exactly more or less similar. The Trial Court committed an error in not noticing the suspicious circumstances under which the will in question came into existence. The Trial Court committed an error in decreeing the suit on surmises and conjunctures. The reasoning of the Trial Court is not supported by evidence on record. Reliance is placed on the following decisions.
8. Sri. S. Shiva Kumar, learned Counsel for plaintiff justifies the impugned judgment and decree of the Trial Court. He contends, that the defendants in their evidence have not denied the signature of the testator on the will in question and as such, the Trial Court is right in holding that the plaintiff has proved the execution of the will. Under Section 73 of the Evidence Act the Trial Court is competent to compare the admitted and disputed signatures. The findings of the Trial Court are based on the evidence on record. Reliance is placed on the following decisions.
9. After hearing the learned Counsel for the parties and after carefully examining the entire record we are of the considered view that the plaintiff has failed to prove the execution of the unregistered will dated 14.04.1983.
10. Learned Counsel for plaintiff contends, that the Trial Court committed an error in comparing the disputed signature of testator with that of other signatures and holding that they are exactly more or less similar. In this case the plaintiff contends that the testator executed an unregistered will on 14.04.1983 bequeathing his properties in favour of plaintiff and Smt. Basannavva. The defendants denied that the testator executed the will dated 14.04.1983. The defendants further contend, that the will in question is not a genuine testimony and that the same is a spurious document. The defendants in their evidence produced certain documents marked as Ex.D-1 to Ex.D-9. Ex.D-1(a), Ex.D-2(a)(b), Ex.D-7(a)(b)(c) and Ex.D-8(a) are undisputed signatures of the testator. Thus there are disputed and undisputed signatures of testator on record. For the reasons best known, neither the plaintiff nor the defendants have taken steps to compare the disputed and admitted signatures by a handwriting expert. Under these circumstances, the Court is competent to compare the admitted and disputed signatures of testator. Section 73 of the Evidence Act reads as under:
73. Comparison of signature, writing or seal with others admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of that Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The court may direct may person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person.
11. The Supreme Court while interpreting Section 73 of the Evidence Act in the case of State (Delhi Administration) v. Pali Ram held, that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on the comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
Again the Supreme Court in the case of Ajit Sawant Majagvai v. State of Karnataka held as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act.
The Supreme Court yet in another case in O. Bharathan v. K. Sudhakaran and Anr. held, that Court should not itself compare the disputed signatures without assistance of any expert when the signatures with which the disputed signatures are to be compared are themselves not the admitted signatures.
12. A combined reading of Section 73 of the Evidence Act and the decisions referred to above makes it clear that the Court has the power to compare the disputed signature with the admitted signature. When the Court entertains a slightest doubt with regard to the signatures then the Court shall hesitate to compare the signature particularly in criminal matters. In the instant case, there is disputed signature of testator in the will dated 14.04.1983, Ex.P-52. There are undisputed signatures of testator in Ex.D-1(a), Ex.D-2(a)(b), Ex.D-7(a)(b)(c) and Ex.D-8(a). Both the plaintiff and the defendants have not taken steps to secure the opinion of a handwriting expert. Under those circumstances the Court has the power to compare the disputed signature with the undisputed signature under Section 73 of the Act.
13. The Trial Court by comparing the disputed and the undisputed signatures of testator concludes that the words, style and letters in both the documents are exactly more or less similar if not identical. As against this, we with the help of a magnifying glass compared the signature on the document Ex.P-52 with that of Ex.D-1, D-2, D-7 and D-8. It is seen from the magnifying glass that on the will at the first instance there is a signature in pencil, later there is signature by ball pen as over writing on the pencil signature. Subsequently the pencil signature on the will is erased. Further, the signature on Ex.D-1, D-2, D-7 and D-8 are matured signatures but not on the will. There are more dissimilarities than similarities in the signatures of testator on Ex.P.52 and Ex.D-1, D-2, D-7 and D-8. Therefore we have no hesitation to hold that the reasoning of the Trial Court is contrary to documentary evidence on record. Further it can safely be said that the signature found on the will Ex.P.52 is not the one similar to the signatures on Ex.D-1, D-2, D-7 and D-8. Therefore we hold that the signature on the will, Ex.P-52 is not the signature of testator.
14. Sri. Shaker Shetty, learned Counsel for defendants contend, that the will in question has come into existence under suspicious circumstances. The Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajappa and Ors. held that the propounder of the shall completely remove the legitimate suspicion before the document is accepted as the last will of testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, the Courts would be reluctant to treat the document as the last will of the testator.
The Supreme Court in the case of Ramachandra Rambux v. Champabai and Ors. held, that where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him, that itself is generally treated as a suspicious circumstance attending the execution of the will.
The Supreme Court in Ram Piari v. Bhagwant and Ors. AIR 1990 SC 1742 held, that the testator - father disinherited one daughter on the ground that she is married and financially well settled could not add to the genuineness of the will.
Again the Supreme Court in Kalyan Singh v. Chhoti and Ors. held:
It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
15. Keeping in view the law declared by the Supreme Court in the decisions referred to above the fact situation in this case is required to be examined to find out whether there are any suspicious circumstances in execution of the will and that they are cleared by adducing acceptable evidence by the propounder. In the instant case the will in question is on a two page stamp paper. In the normal course the signature of testator will be on all the pages. But, in the instant case, the signature of the testator is not found on the first page and it is on the second page only. Secondly, P.W.2 in his evidence deposes that on 14.04.1983 the testator purchased the stamp paper on the same day. But on the stamp paper it is stated that the same is sold on 01.03.1983. Thirdly, in the will A schedule properties are bequeathed in favour of testator's wife Smt. Basannavva and B schedule properties are bequeathed in favour of plaintiff. The details of B schedule properties like property number, its size, its address, bank account numbers, the name of the bank, its location are all furnished. On the other hand in A schedule properties the details of properties bequeathed in favour of Smt. Basannavva are not forth coming. Fourthly P.W.1 in her evidence admitted that the testator and his wife Smt. Basannavva were in cordial terms and there was no ill-will between them. If so, in the will valuable properties situated at Bangalore are bequeathed in favour of plaintiff who is only a close intimate and encumbered properties at Bagalkot are bequeathed in favour of the wife of testator. These suspicious circumstances in the matter of execution of the will in question are not properly explained by the plaintiff. Thus there are suspicious circumstances in the matter of execution of the will in question and that the same is not properly cleared by the plaintiff by producing acceptable evidence. Therefore we have no hesitation in holding that the will in question has come into existence under suspicious circumstances.
16. The will in question is drafted by an advocate and attested by two witnesses. Only one attestor, P.W.2 is examined. This witness, P.W.2 in his evidence stated, that he worked under the plaintiff during May 1979 to the end of 1980. This witness further states that the relationship between deceased testator and the plaintiff is that of husband and wife. Plaintiff in her evidence states, that she knows P.W.2 from the year 1970 and he worked with her in the university. Further plaintiff in her evidence states, that she do not know the advocate who drafted the will and the other attestor by name Sri. Doraiswamy. Under the circumstances, P.W.2 is an interested witness. The plaintiff has not examined the scribe and another attestor who are independent witnesses. It is not the case of plaintiff that these two witnesses are not available. When P.W.2 is an interested witness, the examination of independent witness, the scribe and another attestor to the will is very much relevant. The non-examination of these two witnesses is yet another surprising circumstance and the same is not cleared by the plaintiff by any explanation or evidence. Considering all these aspects, we find that the trial Court has failed to give due attention tot he same and has erroneously decreed the suit. Hence, in our view, it is just and proper to interfere with the judgment and decree impugned.
17. For the reasons stated above, the following;
Order I. The appeal is allowed.
II. The judgment and decree dated 27.01.2001 in O.S. No. 6752/1993 passed by VI Additional City Civil Judge, Bangalore City is hereby set aside.
III. The suit of the plaintiff in O.S. No. 6752/1993 is hereby dismissed.
IV. In the facts and circumstances of this case, the parties are directed to bear their own costs.