Karnataka High Court
Smt.Jana Bai W/O Shri Deekaraman vs Shri.Komalan Since Deceased By Lrs. on 8 July, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.588 OF 2009
BETWEEN:
1. Smt. Jana Bai,
Wife of Shri Deekaraman,
Residing at No.6/12,
'D' Street, Nanjappa Circle,
Bangalore - 560 027.
2. Shri Om Prakash,
Son of Late Jagannathan,
Aged about 67 years,
Since dead by his
Legal Representatives:
2a) Shri J.O.Parthibaubabu,
Son of Late Sri. Omprakash,
Aged about 40 years,
No.735, 10th Cross,
2nd Stage, 10th Main,
Indiranagar,
Bangalore - 560 038.
2b) Shri J.O.Sarvana Kumar,
Son of Late Sri.Om Prakash,
Aged about 38 years,
No.262, Murphy Town,
2
9th Square, Ulsoor,
Bangalore - 560 008.
2c) Smt. J.O.Bhavani,
Daughter of Late Sri. Om Prakash,
No.66, 6th Cross,
2nd Floor, Sai Mandir Road,
Cambridge Layout,
Bangalore - 560 008.
2d) Smt. J.O. Veena,
Daughter of Late Sri. Om Prakash,
No.40, 10th C Street,
Jougupalya, Ulsoor,
Bangalore - 560 008.
3. Shri Balasubramani,
Son of Late Jagannathan,
Aged about 62 years,
Since dead by his
Legal Representatives:
3a) Usha Balasubramani,
3b) Senthil Kumar,
3c) Archana,
All are residing at
No.869, 17th Cross,
Kempegowda Main Road,
BHEL 2nd Stage,
Rajarajeshwari Nagar,
Bangalore - 560 098.
[cause title amended
3
Vide court order dated
3.6.2013]
4. Smt. Nirmala,
Daughter of Late Jagannathan,
Aged about 54 years,
Residing at No.6/12, 'D' Street,
Nanjappa Circle,
Bangalore - 560 027.
... APPELLANTS
(By Shri Sreevatsa, Senior Advocate for Smt. Anushree Jois,
Advocate)
AND:
1. Shri Komalan,
Since deceased by
Legal Representatives:
1a) Smt. Maheshwari,
Wife of Late Komalan,
Aged about 50 years,
1b) Shri Shanmugha,
Son of Late Komalan,
Major,
1c) Shri Karthik,
Son of Late Komalan,
Major,
Respondents 2,3 and 4 all
Residing at portion of
No.6/12, 'D' Street,
Nanjappa Circle,
4
Bangalore - 560 027.
2. The Collector of Central
Excise and Customs,
Queens Road,
Bangalore.
3. Shri Raju,
Father's name not known,
Major, residing at 369D,
Lakshmi Road, 5th Cross,
Shanthinagar,
Bangalore - 560 027.
4. Shri Shekar,
Father's name not known,
Major, residing at 369D,
Lakshmi Road, 5th Cross,
Shanthinagar,
Bangalore - 560 027.
...RESPONDENTS
(By Shri Padmanabha Mahale, Senior Advocate for Shri
Chandrashekar.K, Advocate for Respondent No.1(a to c)
Shri. D.A. Lakshminarayanappa, Advocate for Respondent No.2
Notice to Respondent Nos. 3 and 4 dispensed with vide order dated
9.4.2012 )
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
1.12.2008 passed in O.S.No.10687/1994 on the file of the IV
Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore,
decreeing the suit for permanent injunction.
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This Regular First Appeal having been heard and reserved on
23.6.2015 and coming on for pronouncement of Judgment this day,
the Court delivered the following:-
JUDGMENT
This appeal is filed by the plaintiffs. It was their case before the trial court that the first defendant and they were the children of one Jagannathan. The original plaintiff no.1 Janabai, was deleted from the array of parties after her death, by an order of the trial court, dated 9.4.2009. But is shown as the first appellant in the appeal. The first defendant had also died during the pendency of the suit and is now represented by his widow and two major sons.
Jagannathan, the father of the parties aforesaid, is said to have died on 18.9.1956, leaving behind the plaintiffs, the first defendant and one R.J. Jeevanathan as his legal heirs. Jeevanathan, a brother of the plaintiffs and the first defendant, was said to be working as a Superintendent in the Central Excise Department. He is said to have died as a bachelor, as on 28.10.1993.
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Jagannathan is said to have purchased the property described in Schedule 'B' to the plaint, out of his earnings. It was claimed that since the plaintiffs and the first defendant were the sole legal representatives of late Jagannathan, that they were entitled to equal share of the said property. The third and fourth defendants were said to be the tenants of the said property and defendant no.1 was said to be collecting the rents.
It was alleged that the first defendant however, had concocted certain documents by virtue of which he was seeking to claim exclusive possession and ownership of the said property and was also laying claim to the service benefits of late Jeevanathan, though he had died intestate and therefore the plaintiffs would be entitled to their share too. Hence the suit.
The first defendant had filed his written statement to contend that Jeevanathan had indeed left behind a will, dated 21.5.1993 and in terms of the will, it was claimed, that the first defendant had acquired an exclusive right over suit Schedule 'B' property, the right of Jeevanathan, over suit schedule 'A' property. And that the 7 properties enumerated under suit schedule 'C', were non-existent, except a Bullet motor cycle and a pistol. And that the said properties were the exclusive property of Jeevanathan and hence had been bequeathed under the will in favour of the first defendant. So also the service benefits of late Jeevanathan had been bequeathed in favour of the first defendant. The will of Jeevanathan was a holograph will and was duly registered. The allegations of forgery and fraud was therefore unfounded and unfair.
The first defendant had died during the pendency of the suit and was thereafter represented by his legal representatives.
The second defendant fully endorsed the claim of the first defendant, as to the bequests made by Jeevanathan under his will.
2. On the basis of the above pleadings, the court below had framed the following issues :
"1. Whether the plaintiffs prove that they are entitled for 1/5th share in the suit schedule property?
2. Whether first defendant proves that late R.J.Jeevanathan/Jagannathan executed the WILL dated 21.5.1993?8
3. Whether the 1st defendant further proves that item No. 'A' of the schedule property is the self-acquired property of R.J.Jeevanathan/Jagannathan?
[Issues 1 to 3 have been recasted on 10.9.2003].
4. Whether the plaintiff is entitled for the relief of injunction?
5. What order and decree?"
The trial court held that the plaintiffs were entitled to 4/6th share in suit schedule 'A' property. As the same was the self acquired property of Jagannathan. The trial court rejected the claim of the plaintiffs in respect of other items of property. It is that which is under challenge in the present appeal.
3. The learned Senior Advocate, Shri S. Shreevatsa, appearing for the counsel for the appellants would contend, that the trial court had committed manifest errors in appreciating the evidence as regards the alleged execution of the will claimed to have been executed by Jeevanathan. It is pointed out that in holding that the said will was proved, the trial court had principally considered the 9 evidence of one Manivannan, DW-2, an attesting witness to the will. That in arriving at that conclusion, the court below had overlooked the statements made by the witness in the course of his cross examination.
In highlighting the above contention that the statements of DW-2 could not be reconciled and could not have been accepted, attention is drawn to the following:
"DW2 at para 3 of his affidavit evidence has stated as follows:
"I state that Sri R.J. Jeevanathan had written his Will in his own handwriting on 21.5.1993 in the presence of myself and our another colleague Sri. C. Soloman Raj."
DW2 in his cross examination - page 12 of his deposition (5 lines from the bottom) has said as follows:
"I say voluntarily that when we were sitting in the hall, Jeevanathan was writing something in his chambers. Then he called inside his chambers and told us he had written a Will."
Earlier in the same paragraph DW-2 states (6 lines from the top) "Jeevanathan called us inside his chamber in the office and showed us the Will. He asked us to attest the Will."
10From the above it is clear that Jeevanathan did not write the will in the presence of the attesting witnesses, on 21.05.1993. This aspect of the matter has been completely missed out by the Learned Trial Judge, who has not even made a reference to it."
It is further contended that one other significant circumstance that is glossed over by the trial court is whether the hand writing of Jeevanathan was proved in claiming that the will in question was a holograph will. In this regard, it is pointed out that DW-1, had asserted that the will was in the handwriting of late Jeevanathan and that there were other documents in his handwriting which could be compared, but none was produced. Hence it remained in grave doubt if the said will was a holograph will. This was a suspicious circumstance surrounding the will.
It was also contended that the trial court could not have been carried away by the mere fact that the said will was claimed to be a registered one. The mere registration of a will does not also establish its genuineness. This is a settled legal position. 11
It is contended that yet another suspicious circumstance surrounding the will is the fact that DW- 1 has stated in his evidence that Jeevanathan had handed over the will on 21.5.1993, when the registration formalities are seen to have been completed only as on 16.6.1993.
It is also contended that on the last page of the will, there is an endorsement on the left and a signature on the right, " Drafted and Written by me" with signature below with date and signature. These two writings are seen to be in a different ink, from the rest of the document. This aspect has not been explained.
It is further contended that the will does not recite as to why the other brothers and sister of the testator were being excluded from the will and why the entire assets of Jeevanathan was being bequeathed to defendant no.1.
It is hence urged that in the absence of any attempt to remove these suspicious circumstances with appropriate explanations, it could not be said that the will had been proved .
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4. On the other hand, the learned Senior Advocate, Shri Padmanabha Mahale, appearing for the counsel for the Respondents 1 (a) to (c), would seek to justify the findings of the trial court. And would contend that the alleged infirmity sought to be highlighted, with reference to the cross examination of DW-2, one of the attesting witnesses examined to prove the will, is hardly of any significance. The said witness was a sub-ordinate officer working under the testator was not in dispute. He was an independent outsider to the family, there is no motive or mala fides attributed to him in having tendered false evidence. The so-called inconsistent statements of the witness, it is pointed out, are perfectly logical. The testator was seen writing inside his chambers, the attestors were present in the hall outside. They were called inside by the testator, to be told that he was completing the process of writing his will and that he wanted them to attest it.
It is further pointed out that the will was a holograph will. The same had been proved in accordance with law. When the plaintiffs sought to question the genuineness of the handwriting, it 13 was for them to tender rebuttal evidence. For the burden of proof in respect of a will propounded had been discharged as required in law. The mere denial by the plaintiffs that the will was not in the handwriting of the testator by itself did not create a suspicious circumstance.
The contention that there is a glaring inconsistency of the dates on which the will is said to have been handed over to the first defendant by the testator and the date on which the actual registration formalities were completed, is also not significant, when it is seen that the will was registered and was said to have been handed over in the year 1993, the suit is of the year 1994 and the evidence in the suit is recorded in the year 2005, hence any inconsistent statements made cannot be construed as being a suspicious circumstance.
The other circumstance as to there being a difference in the ink of the signatures of the testator found on the last page of the will
- against an endorsement reading : 'Drafted and Written by me', the learned Senior Advocate would point out that the testator could 14 have made this addition even at the time of registration and hence the difference, the extreme suspicion with which the plaintiffs were calling upon the court to view every single mark on the will is perverse and unnatural.
It is also contended that the mere exclusion of the plaintiffs from the will would not invalidate the will nor could it be construed as being a suspicious circumstance surrounding the execution of the will.
5. On these rival contentions and on a perusal of the record, it is to be kept in view that a decision on the due execution of a will, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. It inter alia provides that 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 15 the testator a personal acknowledgement of his signature or mark, or of 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. In the matter of proof of a will, Section 68 of the Indian Evidence Act, 1872 enjoins that 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. Proviso thereto states that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. (See: Bhagwan Kaur vs. Kartar Kaur, (1994)5 SCC
135).
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In the instant case on hand, these primary requirements are met, in proving the will. The seeming inconsistent statements of the attesting witness, is an obvious distortion brought about by deft cross examination befuddling the witness into not accurately stating the sequence of events, as rightly pointed out by Shri Mahale.
Further, the will which was claimed to be a holograph will, when was disputed by the plaintiffs, it was for the plaintiffs to have produced specimens of the testator's admitted handwriting to dislodge the will. The law does not place any such burden of proof on the propounder of the will. In any event, the signatures of the testator on the will was not negated by the plaintiffs.
The several allegedly suspicious circumstances claimed by the plaintiffs cannot be said to be well founded, including the fact that the testator may have chosen to exclude the plaintiffs from the will, without assigning any reasons and conferring the entire benefit on defendant no.1, it is neither unusual or illegal.
In the final analysis, the requirement of proof of a will is the same as any other document excepting that the evidence tendered in 17 proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers.
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of 18 evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict -- positive or negative.
It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced 19 satisfies the requirement of proving a will, the court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance. (See: Madhukar D.Shende vs. Tarabai Aba Shedage, (2002)2 SCC 85).
In the result, the several grounds urged in the appeal lack merit and the appeal is dismissed.
Sd/-
JUDGE nv*