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Karnataka High Court

J T Surappa S/O Late J S Thimmappaiah vs Sri Satchidhananadendra Saraswathi ... on 16 April, 2008

Equivalent citations: AIR 2008 (NOC) 2433 (KAR.) = 2008 (4) AIR KAR R 480, 2008 (3) AJHAR (NOC) 1080 (KAR.) = 2008 (4) AIR KAR R 480, 2008 (4) AIR KANT HCR 480, 2008 A I H C 3029

Author: N.Kumar

Bench: N.Kumar

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated this the 16": day of April, 2008 ; MSS
BEFORE | a
THE HON'BLE MR. JUSTICE x
TOS No. i of 2006 :

i SriJTSureppa
Aged about S4 yeara:
S/ o laie Jd Ss S Thiniapy

SriRam_ Oo , =
Aged about 28° years
S/o JT Sarappa. _

a Both are residing at
me No.211, > Reoterye Road |

"(By Smt. SB Lakshmi, Advocate)

Saraswathi Swamiji Public
Charitable Trust
Halaigainahundi,
Vajamangala Pos t,

Mysore

Smt. Vajreshwari
Major
D/o late J T Nanjundaswamy



Smt. Srimatha
Major
D/o J T Nanjundaswamy .

Respondents 2 and 3 are ©
Residing at No.586

Tejaswi 7% Main ~~.

5th Cross .

H.B.R. Layout

34 Block .
Brundavan Extension -~ =.
Thomas Town Post Nice a
Bangslore - 84 me

The Sceretary a
Sadvidya Fothashala -
Narayana Shastri Rood
Mysore

Sn J T Somashekar
-§/o late J S Thimmappaiah
~. Aged about 65 years

Residing at Halagaine Hundi Village

os Vajamangaia Post
, Mysore -- - 570 010

Sri J. T. 'Nanjunda Swamy
S/o-late J S Thimmappaiah
_ Aged about 63 years
'Residing at No.586
"Thejaswi' 7% Main
5t Cross, HRB Layout
34 Block, Kalyanagar Post .
Bangalore - 560 043 ... Defendants

(By Sri C R Subramanya, Advocate for D1;
Sri H R Shashidhar M/s Kesvy & Co., Advocates
For R2, 3, 5 and 6;

Sri Krishna S. Dixit, Advocate for D4)

Le


This TOS praying to prove the will in common. form ;
before Court and to grant letters of administration with the .
copy of the will annexed to have effect throughout india in
favour of the plaintiff - JT Surappa and etc.,

This TOS having been heard and reserved for judgment,
coming on for pronouncement of oniem, the Court Pronounced
the following : an

ORDER oS

This petiticn/ suit Le filed for (grant of letters of
administration with a copy of the Will, which came into
existence six hems: 'prior to the: death of the testator m ICU of

the Hospital By « an order dewed 1.3.2006 this Probate Petition

was oxdered to be converted into an original suit. Therefore, the

parties: 'to - the proceedings are herein referred to as the

: : piaintifi: and efendants i in a suit.

2. ~ The first plamtiff and defendants 5 and 6 are
| ~ brothers. Second plaintiff is the son of the first plaintiff.
Defendants 2 and 3 are the daughters of the 6 defendant. 1*

'and 4h defendants are beneficiarics under the Will. eae


first plaintiff and defendants 5 and 6. He died 0 ol. 2 24. 1. 2003 at
Mysore. He was a divorcee. He bad no issues. The CASE. of the :
plaintiffs is, that Sri J.T. Anoothaswanny has left an
unregistered Will dated 24, 1. 2003 'bequeathing all his
properties in favour of the plaintisis end 'defendants 1 to 4.
Annexure-A to the ploint contains 'the assets and Annexure-B
contains the liabilities. Thevefor, the plaintiffs have filed the

above suit for > grat ¢ of letter of 'administration with the Will

"4, Notice to the defendants was ordered. A citation was
* = onlered aud it was duly published in the Indian Express.
Notices were duly served on the defendants. Defendants 5 and

6, the two brothers of the deceased testator filed an impleading

on application and they came on record. Defendants 2 and 3 who

are the daughters of the 6% defendant filed their statement of
'objections contesting the Will, though they were also the
beneficiaries under the Will. Section 295 of the Indian

Succession Act, 1925 provides that, when there is contention,

\



the proceeding shail take, as nearly as may be, the form ofa 7
regular suit, according to the provisions of tie Code of Civil
~ Procedure, 1908, in which the petitioner for probaiz or letters |
of administration, as the case may 'ce, shail be the plaintiff,
and the person who has-- aypeared to oppore the grant shall be
the defendant. Therefore, the Coart directed the Registry to
register this probate petition a as an origi suit on the plaintiffs
paying the requisite Court fee. 7 The plaintiffs paid the requisite
Court ee and by al , order doted 1. 3. 2006 the probate petition

was ordered to be converted into an original suit

5, The first deiendant filed his objections admitting the
: execution of the Will. It is defendants 2 and 3 who filed

objections contesting the Will. They specifically contended that
the deceased J.T.Ananthaswamy never executed any Will. The

| Will dated 24.1.2003 is a concocted one. J.T.Ananthaswamy

died intestate. First plaintiff and defendants 5 and 6 are the
'legal heirs to succeed to the estate of deceased
J.T.Ananthaswamy. The alleged Will of J.T.Ananthaswamy is

forged by the plaintiffs to suit their needs. On 24-1-2003 the
We



date of the alleged execution of the Will at 'Basappe Meinorial 7
Hospital at Mysore, no | . oie. 2 in _pardicutar
Sri. V.Shankarayanarayana and Y. Vasudeva, the. attesting o
witnesses to the said Will were permitted to emter the hospital
to see the deceased J.T -Anentheswamny. On 24.1.2003 the
deceased was not in a position to sign or execute any
document. He died oD that day at around 2.30 PM. In fact
much before. the. date of nis death and for long time the
deceased was 'not ina a position to sign, execute any document
and more se the alleged Wil. The properties of the deceased
both movable and immovable are worth lakhs of rupees. The
plaintifis have never spent any amount on the deceased. The
: first plaintiff efter the death of J.T.Ananthaswamy has illegally
drawn the money from the deceased S.B. Account of Central

. Bank- of India, K.R.Circle, Mysore and S.B. Account of

~ Syndicate Extension Counter at Marmallappa's High School,

Pet Mysore, on the alleged ground that he is the nominee of the
deceased J.T.Ananthaswamy. Therefore, they have sought for

dismissal of the suit. ? We



6. On 12.4.2006 the Court framed the following issues. | a

i) Whether the petitioners - "prove "that =
J.T.Ananthaswamy executed a wil on"
24.1.2003 while he was in sound disposing
state of mind. and has duly. executed the
same and that the peiitioners are entitled to
letters of adininistration 4 aa > sought for in the
petiticns? Bo |

7. The = plains in eupport of their case examined the
first plaintiff as. Pw i. They. also examined one of the attesting

witnesses to the will V. Vasudeva as PW2 who is also the scribe

«of the Wilt, They examined one Sri.'Swami Atmanandendra

° J § Saraswathi, nephew of the deceased J.T.Ananthaswamy as
| pwe. They 'examined Dr.Venkatappa as PW4. In support of
_ their case they have marked 99 documents which are marked
: ; as EXxs. P1 to P99. Fifth defendant-Somashekar was examined

| as DW1 and two documents were marked as Exs. D1 and D2.

8. Smt. S.B.Lakshmi, the learned counsel appearing for
the plaintiffs contended that, though the deceased testator was
in the hospital for a period of one month, before his death, at

oo


the time of execution of the Will he was in 0 sound state of -
mind. It is on his instructions the will was prepared by Pw2
who alongwith another attesting witnesa has auly. attested tie
said document. PW-4 the doctor has deposed to the state of
mind of the deceased at the time of execution of the Will and
Ex.P99 the case. Sheet meintained in the Hasappa Memorial
Hospital also show that the deceased testator was in a sound
state of mind « at the time of execution of the Will. A perusal of
the bequest shows thai the deceased has distributed his assets
to his kith and kin, inchusting the contesting defendants, 2 and
3. Having regard to the 'evidence on record, the relationship
_ between the parties, there is nothing un-natural in the bequest
. : rnadde aud the evidence clearly establishes due execution of the
Will, sound state of mind of the testator and clears any
suspicious circumstances that may exist in the facts of the

SS case. Therefore, the plaintiffs are entitled to the grant of letter

"of administration.

9. Sri H.N.Shashidhar, the learned counsel appearing

for the contesting respondents contended that, the material on

a



state of mind and he was also not mm a good piysicd condition
to execute the Will on 24.1.2903, The alleged Wil haa come
into existence about six hours before the death of the deceased
testator. A bear perusa! of the Wilt produced in the case
shows that it is a fabricated document. 'The execution of the
Will is not proved. Due attestation iS also not proved. The
suspicious circurastances 'suncounding the execution of the
Will is: not cleared. Ex, P99, the hospital records produced by
the plaintiff itself shows, that the deceased testator was not m
a sound staic of mind. Phere is full of inconsistency in the
-- evidence of: the witnesses, who have been examined in proof of
* : the Will andl therefore, he contends that the Will is not proved

and the suit is liable to be dismissed.

"10. In view of the aforesaid pleadings, the evidence and

the submissions, it clearly emerges that the Will set up by the
- petitioners is disputed by the contesting respondents. Not only
the execution of the Will is denied, but, it is also contended

that the will is a fabricated document and the testator was not

he



10

in a sound state of mind at the time of the alleged execution ; - ;
and it has come into existence in suspicious circumetances, in
the background of these specific defences teken, its to be seen
whether the plaintiff has proved 'fhe will im. 'accordance with

11. Now let. ie examine e the oral evidence adduced by the
parties about the valid execution of the will.

pw- 1, "the first Haiti i iz one of the propounder of the
Will. He is also a beneficiny. In the examination in chief

which is by way of an | affidavit, he has set out the relationship

between: the parties, the execution of the Will by

© UTAnantheswamy, who are the beneficiaries under the Will,
about the mzrriage of J.T-Ananthaswamy and the particulars

of the assets which he has eft behind. Through him 94
| documents were produced, most of which are the share
certificates showing the assets standing in the name of the
' deceased J.T.Ananthaswamy. In the crose

elicited that the deceased testator was working as Manager in

M/s. Bimetal Bearings Limited which is situated at Hosur,


ll

be wa esing wit ia younger bs J: Neajundaem,
the 6% defendant for about 2 years. Prior that be was |
staying at Janardhan Hotel, Bangalore. After retirement in
1994 he was staying) with him. ST .Ansnthaswemy was

married to one Shantha. 'The said marriage wna dissolved by a
judgment and deesee ated" 6. 10. 1987. in M.C.No. 22/1987
passed by the Ii Additional Civil Judge at Mysore, a per
Ex.P7¢. In 2001, 'the testator had a paralytic stroke and the
movement of the Jeft hand was hampered. He also had heart.

problem. In order to treat for paralysis he was admitted to

. " Sitarunga Nursing Hoine at Mysore. He was an inpatient for a

pesicd of one week. He was also treated in the saxi Nursing
Home for ie heart ailment. He was amoking cariier which he --

Me gave ap after retirement. He was also a diabetic patient. He

| was getting periodical checking done and he was taking some

tablets. In December 2002 he had gangrene to his left leg. He
was admitted to Vikram Hospital where he was an inpatient
from 20.12.2002 to 1.1.2003, On 1.1.2003 he was admitted to
Basappa Memorial Hospital. After three days of treatment in


12

3.1.2003. He was in the specie! wand of the said Ioapita, On
21.1.2003 he had symptoms of heart attack. "Agsia he wee
shifted to ICU where he breathed his last. FW1 was attending
to the testator throughout. He sloar wa attending him. He was
taking food to the testator. S Even when ie was in the ICU
he was giving hisa the food, milk, D-protein, ili, vice and
rasam. The testaior was very particular, that he should feed
him. Till he dicd he was feeding the food to him. He died on
24.1.2068 at 2.30 p.m. "He sew him for the last time on

24.1,2003 at 8.20: am. On 24.1.2003 at 7.30 am. one

. ~~. Vasudeva came to set his brother. At 8.30 a.m Sri. Atmananda

| Saraswathi Swami hed come to see his brother who i their
maternal uncle. He went inside the ICU at 11.30 a.m. and

came out No other person visited the testator on that day. At

aoe mein the ing, an bevan re tc At
that time, he gave him one idli and D-protien. At about 12
noon he came to know that his brother was put on ventilator.

He was on drips. He denied the suggestion that the testator

We


13

was not in a position to sign on 24.1. 2008. He saw col the :
Swamiji and Vasudev-PW2 coming to the" hospital on
24.1.2008. Though he aw PWZ entering the hospital nt 7.50
a.m. on 24.1.2003, by the time he returned at 8.30, PW2 had
gone. He was present at the ICU sll 2.30 p.m. on that day. He
did not see any person suitering the ICU beiween 8.30 a.m. to
11.90 am and 12 noon to 2.30 p.m 'Again he reiterated that he
did not sce anyone entering the ICU except PW2 on that day
and he did not. ste Shankaranarayana, another attesting
witness to the Wil in the hovpital He has not seen his brother
signing the Will. The Will was handed over to him by PW2. It
"was handed over to him on the 14% day after the death of the
> testator. However, he was informed about the Will the next day
afer the deuth of the testator. The testator was treating all the

three 'brothers alike. He was also in good terms with his

SS brothers. The testator had the same love and affection towards

"91 the three brothers. He denied the suggestion that the Will is

' a fabricated one. We


14

attesting witness to the Will. In his cxornination-in- chief by |
way of affidavit, he has stated 'that the testatur was his clans
mate and he is also his close fiend. He was visiting the
testator in the hospital regulerly. "The testator aaked him to
write a Will as per hia wish and he requested him to take down
as per his dictation. Accontingly, on 22.2.2003 evening he took
down what the testator. 'dictated. "Thereafter, the testator
requested hits to get it typed and bring the same on the next
day. Therefore, he got the Will typed for the testator the next

day morning. a - . "Whe testator had requested

_-YV.Shankeranarayaua to visit him on the next day for the

= "purpose « of nitesting his Will Qn the next day when he handed
over the typed copy of the Will to the testator, he went through
- the Will and he was fully satisfied with the contents of the Will

a J.T. Ananthaswamy asked him to get Y.V.Shankaranarayana

over phone. Therefore, Y.V.Shankaranarayana reached the
- hospital within half an hour. The testator requested both of
them to attest his Will as attesting witnesses. The testator put

his signature on the Will in their presence. He attested the Will

lo


15

as a witness and thereafter ¥.V.Shancarmarayana aitested the :
Will in the presence of J.T. Ananthaswamy ao per his wich.
After Shankaranarayana signed the Will aa an atiesting
witness, the testator asked him to 'Heep the Will j in his custody
"and to hand over it to J.T Soreppa, PWi, after his demise. It is

through this witness, the' will waa inarked as Ex.P95.

13. He "depoded 'that he has signed the Will at
95{a), W,(0, i), (2. { and: ®. The testator has signed at 95(h), ()
and (K). | Shankarnerayana has signed the said will at
Ex.P:35{). He deposed that the testator for a period of one
| month jor to EX.P.95 was telling him about the contents of

the will After gathering all the information, he prepared a
draft. He showed the same to him, After he approved it, he got

14. In cross-examination he stated that he was visiting
the testator in the hospital once in two or three days. On
23.1.2003, he had been to the hospital at about 5.30 pm im the

evening. He took down the points as per his dictation. After


16

got the will typed on 23.1.2003 and took the said typed copy to
testator on 24.1.2003. He showed the 'ype cupy of the all 10.
Ananthaswamy. He read it once to him. Testator also read
once. Testator signed the Will first. He. corrected the mistakes
and thereafter, he affixed his signature. Testator requested
him to send for Shanksmarayana, 'He phoned him at around
8.00 am. Then 'Shaukarnerayana | came between 8 and 8.30
am, aad when he came, he was sitting outside the ward.
Shankaranarayana alone 'entered the ward. Ex.P.95() is the

signature of Shankarnarayan. He did not see him affixing the

a saet signainre. Ex. P.95(a)(b)(c}{d)(e) are his signatures which

| are afxed after making corrections. At that time, the testator
could have afiined his signature also. Ex.P.95(h) and (j) are

the signatures of the testator. However, the testator has not
affixed his signature after his signature at 95(e)(0) and (d). He
was staying in the hospital till Shankarnarayan came out of the
ward and he handed over the will to him. He came to know
that Ananthaswamy died at about 2 or 2.30 pm. His brother

Surappa informed him the said fact over phone. He informed

wa


17

Surappa, the first plaintiff about the said wili aficr 148 or ise - ;
day of the death of the testator. He also ostmitted that, whst is
stated in paragraph 5 of the affidavit of his © excunination-in-
chief is not correct. He denied several suggestions made to him.

He denied that the Will in a fabricated document.

15. In the y-examination iti is tlivited that the reason for
not taking the signatare 'of the testator at the bottom of the
page was that there was: no "sufficient place left after typing:

Therefore his signature was eden in the margin.

| 46, PW3 is one Swami Atmanandendra Saraswathi. He
- "is the seatemal uncle of the testator. His evidence by way of
examination in chief is contained in hin affidavit He has

deposrd that he was attending to the testator every day. He
oo was allowed to visit the testator even in the ICU, Testator's
mental condition was good till he breathed his last. He was mn
~~ @ good state of mind and he used to understand the things
around him and he used to. chit chat with him. He has deposed

in cross-examination, that he was visiting the testator in the

Lo


=a

18

hospital between 9 a.m. and li am. and in he 'evening --
between 3 p.m. and 5 p.m. After the testator'o log was
amputated, he was in the ICU for some time and thoreaficr, he
was shifted to special ward. With the doctura' permission he
was visiting him because, in kis company the testator used to

have peace of mind. On the date. of his death, the testator was

in the ICU of B.M.Hospital, He did visit iim om 22% and 29 of
January 2003. 'Ca 22% of Jionuary 2009 he was taken to ICU.
On the aficracen of 22% Janvary 2003, he had a massive
cantiac arrest. On 22% snd 22"! he was not put on ventilator.

From 2001, 'when he had paralysis stroke on his left hand, he

| ~~ was unable fo write and sign On 224. 23" and 24% of January

"2003, he was oa drips and the same was fixed to his right

hand. On 24% January 2003, he visited the testator at about

8.30 a.m, in the morning. He entered the ICU at 9 a.m. No one

was with the testator at that time. The testator was in perfect

wes = state of mind according to his understandings. He was in

good health. In fact, the testator even expreased his desire to

get back to Ashrama, so that he can hear the discourses of

which he is fond of. At 9 a.m. the testator was on drips. No

eS


ig

alike. Now J T Somashekar and J'T Naxjundaswamy ore 2ot |
visiting his Ashram after the death of the testater, He knew
about the Will of Ananthaswamy.. Vasudev, who met him at
the gate of the hospital. on 2a January 2003, informed him
about the Will of J T Apanthaswamy. Vaawdev was alone. On
23-1-2003 when he visited JT Anantheswamy at 3 p.m., 15
minutes thereatirr, Vasudev. came to Icu. JT Ananthaswamy
was syeaking 'e Vasudev about some Will It is at 8 30 a.m. on
the next day, Vasudev. mcutioned to him about the Will.
On 24-1. -2003, ir was in the hospital between 9 am to 11.15

At il. 15 am ihe testator's condition was sound and
- = He saw the first plaintiff at 11.15 a.m. when he came
out of ICU. te attend to the phone call He has denied the

allegation that he has colluded with the plaintiffs in preparing

on the Will.

17. PW-4 is one doctor by name Venkatappe. He has
also filed his affidavit in lieu of his cvidence by way of

examination in chief. He has stated that he has been working

va


20

Mysore, for the last 9 years. During Jasmary 2003, he was
also working as a Resident Medical Officer. 'His duties | consint .
of general supervision from time to time im a day of going
through all the wards. .. 'He has secn the case sheet records
maintained in respect of the testator who expired on 24. 1.2003.
He has produced 'the records: maintained by the hospital
related to him, When the testator was kept in ICU he had
visited him. On 2244, 236 'and 244 of January he visited the
deceased three times a a day. With permission one or the other

"person relaied to the patient in the corridor of ICU was

permitted to go and sec him in stipulated times. On 23° the

< testator wes administered drugs for broncho dilation. On 24%
morning tie same drugs were administered. On January 24

"at about 8 or 8.30 am, when he visited the testator he looked to

"be cheerful and was able to talk. He enquired about his health

und the testator was able to respond saying that things seem to
be improving and he would soon go back home. He agam
visited at 10.45 am and enquired with the duty doctor who told

him that the testator was improving and also said that the

We


pe

21

testator had executed a Will on the-same day. ; "He received ceived

information at about 2.30 PM that. the testator 'bad a cardiec
arrest and due to low bloud pressure his breathing Was
irregular, he was put on ventilators. He supervised the putting
up of mask and bag ventilators end felt that he would survive.
He advised the. duty auctor to give some adrenaline and

ime to 'improve: the pulse and lung ¢ conditions and make
him stable. However, ihe received information that he died at
2.45 FM. | "He produced the cuse sheet of the testator during
his stay in the hospital and it was marked as Ex.P99. He

deposed that the progress report at 8.45 AM shows thet he was

| conscious. | ia B.P was normal His general appearance on his

tio visits on A. 1.2003 was one of improvement and he was

cheerful and had no problems with his speech or action He

~. can definitely say that he was suffering from discase but his

"> sheet which is marked as Ex.P99 contains pages 1 to 238. At

page No.94 it shows the progress report of the testator on

24.1.2003 at 8.45 AM. We


18. In the cross-examination he hes stated that the

nature of work which he undertook during the 'Govermaat |
service was treating outpatients in the houpitat and also fomaily ;
planning services. jm the Besappo Memorial Hospital his
nature of work was overall supervision of Hospital work,
signing of leave reimbursement bills, granting leave certificate
and attending to the patients who are in Critical Care Unit
thrice a day between @ AM to 5 PM. He used to enquire from
the patients in the 1 shout their health condition. However,
he was aot entitled to moon' his observations in the progrese

shect. He had no 'responsibility of treating the patients in the

TOU He was not competent to treat those patients or advice

A shout the treatment to be given to those patients. His

supervision work included finding out the maintenance of the

wards, 'bow the patient is treated, but he was not involved in

on the management of the hospital. Ex.P99 produced by him 1s

called inpatient case shect. In the entire case sheet he has not
- written anything at any point of time. He visited the testator
on 24.1.2003 at about 8.30 AM along with the Specialists. He

alone did not visit testator on that day. He went along with the


me

Specialists. At 8.30 AM on 24.1.2003 when he: visited the
testator, he was not put on ventilators. He cannot sey to. wh ich
hand drips had been put to the testator. He does not know
whether any close relatives of J. T. Anenthaswamy were present
in the ICU when he visited him. 'To vist patients who are in
ICU a particular time is prescribed in the bospital However,
with the permissnc of the authorities people will be allowed to
visit the patients in the ICU. There will be 2 rounds in a day
for the Specialists to visit the petionta. The morning round will
be 8.30 io 12.00 PM. In the evening it will be from 4.00 PM to
6.00. PM. During that period general public will not be allowed

to the wards. He has not treated the testator at any point of

: : time He wes not the competent authority to treat him since he

wes 8 peti hypertension, diabetes and chronic oppressive

19. When he went to see the testator at 8.30 AM one Sri.
S.Bhaskar, Physician, Sri.C.B.Murthy, General Surgeon,

Dr.P.Herale, the Plastic Surgeon and Dr.Gurappa, Thyorasic

We


Surgeon were present in the ICU. aticnding to the testator. AL

the four doctors have recorded in the case sheet eboui the
health condition of the testator on 24. i, 2003. No speci
attended the testator after 8. 30 AM in the morning and before
2.00 PM. Around 2 0 clock Dr.3.Bhaskar attended the
testator. At 2.09 PM tesiztor was having breathlessness, pain
in the chest, | ead sweating. - Dr. Bhaskar attended to these
problems on that day. The testator died at 2.45 PM on that
- day. He was pet on ventilators at 2.15 PM. It is the doctor who
put the testator ¢ on. ventilators, particular anaesthetic would do
x job, but he does not know which doctor did it on that day.
hs AL 8.30 AM when he visited the patient he was lying on the
: : "hed, he wus conscious, he was responding to commands. Both
the hands of the testator were normal. His left leg was amputed
- on 3. 1.2003 because of Gangarian. He does not remember
| SS whether his leg was amputed above the knee. It was his left
| Jeg. He has no idea about any person being granted permission
| by the hospital authorities to visit J.T.Ananthaswamy in the
ICU apart from visiting hours. | a



20. On behalf of the defendants "J-T-Semusbekar, 7
defendant No.5, is examined. He aiso filed his exaroinaiion in
chief by way of an affidavit. He has referred to his relationahip .
with his brother, his brother being adinitted to the bospital, the
treatment given to him, "those wo wore ? visiting him in the
hospital and has denied the execution of the Will by the
testator and the signature of the testator on the Will. He has
also produced the discharge summary in respect of the teatator
which is marke: as Ex. Di. _ EX. D2 is the receipt issued by the
hospital for receiving money ior issuing Ex.D1. He admitted in
the cioss-examination, that he has filed @ suit for partition in

the Civ 'Court at Mysore and it is numbered as
: : O, s. 820/200. "He admitted execution of several documents in
respect of tive agricultural properties in favour of the Trust and
he also admitted the relationship between the parties as well as

SS the witnesses who were examined in the case. Nothing

"worthwhile has been elicited in his evidence which supports

the case of the plaintiffs in proving the Will. We



got marked 99 documents. Out of the 99 documenta, 'Exe. PI |
to P75 pertains to share certificates standing i the neme of
the testator which has 'sboohutely LO bearing in proving the
impugned Will. Ex.P76 is the surviver certificate, Ex.P77 is
the death certificate of the testator; F7. Bi ia the death certificate
of the father of th plaintiffs. 'Ex. P79 i 3 the certified copy of the
order in MC No. i 1987 under which testator got divorce
against his wite, Ex. F80 4 is the paper publication showing that
the property at Mysore beloaging to the testator is for sale

Ex.P81 is 'the Client 'Muster List obtamed by the testator.

7 Ex P32 is the origina! Will of the father of the testator. Ex.P&3

os ; is the reutation extract Ex.P84 is the RTC extracts. P85 is tax

paid receipts. Ex.P86 is mutation orders. Ex.P87 is 6

7 computerized RTC extracts. Ex.P88 is a copy of the letter given

| o for change of mutation. Ex.P89 is identity card of the testator

issued by the Election Commissioner. Ex.P90 is a letter
written by PW1 to Vijaya Karnataka. Ex.P91 is the
acknowledgement. Ex.P92 is the order sheet im revision

petition filed before the Deputy Commissioner at Mysore.



27

Ex.P93 is the petition copy filed by bim und EXPO4 jo the
objections filed in the said proceedings. Es.P9S in the disputed

Will. Ex.P96 to P98 are letters and Ex.P99 is the case shect,

Ex.D1 is discharge summary. _

22. It is from thio oral and documentary evidence on
record, whether the Will is proved is to be found, Before doing
that it is mecessary to bear in mind the settled legal position in

20 far as proof of Will 1» concerned.

. 23. "Phere j is one 'important feature which distinguishes

wits from other documents. It is one of the most solemn

- : document inown to law. Through it, a dead man entrusts to
the iiving, the carrying out of his wishes. As it is impossible,

that he can be called either to deny his signature or to explain
| > the circumstances in which it was made, it is essential that
trust worthy and effectual evidence should be given to establish
the Will, Therefore, unlike other documents, the Will speaks
from the death of the testator. It is ambulatory and it becomes
effective and irrevocable on the death of the testator. It is a

We


person making i with rept he mars which he wishes |
to take effect upon or after his = death. io | Thesefure, when it is
propounded or produced before a. Court, the testator who has
already departed the work, cennst say whether it 3 is his will or
not; and this aspect naturally. introduces an element of
solemnity in ihe decision of the question as to whether the
document mropounded iz 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 dccuments. However, im the case of Wills,

> apart from proof of ihe documents, additional factors have to

. : be satisfied, hefore the court could declare a document styled
ae "WilP i is 'proved.

4 24. Therefore, the court has to tread a careful path in
the enquiry to be conducted with regard to Will. The said path

~ consists of five steps "PANCHA PADI'. The path of enquiry and

steps to be traversed are as under:- We


(1) Whether the Will bears the. signature or ; mark of the a

testator and is duly attested by two witnesses 'end
whether any attesting witness is eomined te prove
the Will? |

(2) Whether the netiral heirs have i been disinherited? if
sO, what i is the reason? |

(3) Whether the teatator wes in a | sound state of mind at
the tine of f executing the will?

(4) | Whether, any : _ suspicious circumstances _ exist.

; surrounding the execution of the Will?
§) Whether the Will has been executed in accordance
- with Section 63 of the Indian Succession Act, 1925,

- ead with Section 68 of the Evidence Act?

25. 'The word 'Will has been defined under Section 2{h) of

_ the Indian Succession Act, 1925 (for short hereinafter referred

to as 'the Act). Will means "the legal declaration of the
intention of the testator with respect to his property which he
desires to be carried into after his death'. In India everyone is

or wa

governed by their personal law im so far as inheritance


succession to their property is concerned. In the absence ofa

Will the property devolves on the legal heirs i in accordance with |
the said personal law. If there is a Will, it comes in the way of
the operation of the said law. Therefore, 'the will obstructs
inheritance of the property. Under the Act, the Will to be valid,
should be reduces into weriting, signed by ibe testator and shall
be attested by twe or more witnesses ani at least one attesting
witnesses shall he examined. "if these legal requirements are
not found, in the eye of law theze is no Will at all: Therefore, 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 concemed and

"om negotiv  caim based on the said document This is the
FIRST STEP.

ms | 6. Once the aforesaid legal requirements are satiafied,
'the SECOND STEP would be to find out whether under the

"Will, the testator has disinherited the persons who would have

inherited or succeeded to his property im the absence of a Will.
A Will may be executed by a person distributing his cntire
properties to his legal heirs in order to avosl a future dispute. |

Wo


31

serene Yatra te aie es da
heir, in particular his wife and chikiren, then i woukd he
improbable or unnatural, bui. not invalid. In auch
circumstances, i meccramy for the Court t Sind ow the
reasons for such disinheritance. "The reason for such.
disinheritamce sozzetimes could be found in the Will iteclf or.
from extrinsic evidence ackiuced, 'Such am exclusion, in the
absence of a satisiactory explanation, may also constitute @
suspicious cirenmstance. . Therefore, when legal heirs are
disinherited, the Coust bas to scrutinize the evidence with

i . greater degree of cave than usual.

~ 27. The THIRD STEP would be to find out whether the

7 testaior was in a sound state of mind at the time of executing
| the Will The question of a sound mind is a dominant.

question in a court of probate. The test to judge a sound

disposing mind is not an absurd test. Nor is it the test of a

perfectly healthy and perfect mind. The teat of a sound
disposing mind is in law a workable teat. It is not a

We


hypothetical nor an impracticable 'ret. Wein wt te tate
paychologiat or a paycho-analyat or a pejchictrint who in the
modern age, prone to conside: ail human mind to be inherently

unsound by nature and abnormal: Nor, is it the scientific teat,
_ which would satiafy the highest technical medical examination.
The mental soundness nd the physical fituess of the tratator
is an important circumstance when the testatorial capacity is
being scrutiniard. In case of weakness of mind arising from
near approach of death, 'strong proof is required that the
contents of the will were known to the testator and that it was.

his spontanecus act. Ii is settled law that, the propounder has

| "to show hy satinfactory evidence that the Will was signed by the

7 teatator and at the relevant point of time he understood the
neture end effect of the dispositions and put his signature to
"the decument of his own free will The real test in all cases of

| . this 'kind is, whether the testator had & proper appreciation or

- comprehension of his act.

28. Thereafter, the FOURTH STEP would be to find out

whether there exists any suspicious circumstance surrounding

eC


the execution of the Will. "A circumstance would be suspicious _ i.

when it is not normal or is not normally expected ia a normal |
situation or is not expected of a normal percon or deca not
express the mind of the testator." The fact that the Will is
unnatural, unreasonable and improper, calis for close
examination. What is a suspicions circumstance depends on
the facts of ench particular case, Thexe ia no hard and fast
rule. Several well recognised 'circumstances which are
recognised over the years are only @ pointer in this direction
They are, propoundcr tairing a prominent rok in the execution
of 9 Will which confers substantial benefit on him; Will

executed by a dying person or @ person nearer to desth or

- : when the tesiator was physically and mentally feeble and near
his end; "The Will containing shaky signatures and not

- registered. A feeble mind likely to be influenced; Unfair and
| SS unjust disposal of property; Disinheriting the natural legal

> heirs without any reason; The testator's imtellect mmpaired or

weakened by age or iliness; The testator being a literate person
putting his thumb impression on the Will Marked variances

between the signatures found at different places in the Will;


The Will which has not seen the: light of the day for a

considerable period from the date of death of the testaior;
Incorrect recitals in the Will; Will written in a language which is
unknown to the testator, etc., 'The evidence in support of the
instrument must pass. the teat of jealous scrutiny. The
suspicion so stincd is to be removed by clear proof, as regards
the sound disposiag min of the teatator being free from undue
influence. Wher there are suspicious circumstances, the onus
is on the propounder tx explain them to the satisfaction of the
Court, before the com ocepts the Will as genuine. In such a
case, the Court woukl naturally expect that all legitimate
_ 'suspicion sbould be completely removed before the document

: is + soexpied as the last Will of the testator.

| 29. The last and FIFTH STEP is to consider whether the
~ Will that is executed is in accordance with Section 63 of the Act

wes - read with Section 68 of the Evidence Act. The will je 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.

Ther


can be no valid execution without due attestation, and if due a

attestation is not proved, the fact of execution is of 10 avail In
case of documents, which are compulsorily attratabis,
caccution means some thing more than mee signing It
includes delivery and signing im the presence of witnesses or on
personal acknowledgment of execution 'by executant. Ht
includes the whole secies, of ects oi formalities which are
necessary tb give the document vali

3G. 'Section 63 of the Act deals with execution of

unprivileged Wille. it prescribes three rules which have to be

 satistied. before the Court can declare that the Will is duly

executed, "Evidence should be adduced to show that the
testator has signed or affixed his mark to the Will The said

signature or mark of the testator shall be so placed that it shall

| - appear that it was intended thereby to give effect to the writing
end lastly 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 received from the testator a personal

acknowledgement of his signature or mark and each of the

We


witneasea shall sign the Will in the yresonce ofthe festtor 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. Therefore, 'the Court has to find: out
whether the Will bears the signature of the testator and the
said signature is placed at e plave with the intention of giving
effect to the Will, 'Further the sid Will has been attested by
two witnesses snd whether the witnesses have secn the
testator fix is signature to the Wil in their presence and if
not at ivast they" receive 'from the testator a personal
acknowledgement of his signature or mark and cach of them
| shail sign the Will 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. .

"31. Section 68 of the Evidence Act deals with proof of

7 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, the said document shall not be

used as evidence until at least one attesting witness has been


37

seating wines ave and subject to te proceso the Cour
and capable of giving evidence. Whether auch a Will io
registered or not registered, in the eye of law it makes no
difference. Bven if the aid Will is registered under the
provisions of the india Registiation Act, '1908 whether the
execution of the Will in admitted or denied, it is necessary to
call an attesting witncas in proof of the execution of the said
Will. Under 1 no  sdroumstances the proof of execution of the Will
is dispensed with in law, |

| 32. 'It ia 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.

33. In the background of these legal principles it is to be
seen, in the instant case, whether the Will is duly executed.


34. There is no dispute regarding relatic ask ip bet an .
the parties. The father of the deceased testator wun one

J.S.Thimmappaiah. He had four sons. ST Ansutharwamy,
J.T.Somashekar, J.T. Nanjundaswemy and J.7.Surappe All of
them were residents of. Mysore. During the lifetime of their
father all of them were living in the family house at No. 211,
Ksbretraiah Road, Mysore-24. The deceased testator was the
eldest brother of the fret plaintif and defendants 5 and 6.
Ex. P82 is the orighzal wil of the father of J.T.Ananthaswamy.
The beneficiaries ain 'the firet plaintiff and defendants 5 and 6,
under which 'their father distributed both the agricultural

-- properties owned by im which are situated at Halagainahundi

Village es well as the house property where all of them were
ving On the basis of the aforesaid Will the mutation entries

were rade in the name of the brothers. Exs. P83, 84 are the
| * mutation extracts, RTC extracts, P85 is tax paid receipt, P86 is
the 'mutation order and Ex.P87 is six computerized RTC
extracts, The said Will is not in dispute. Even in the absence

of the Will, the four brothers would have inherited the property

to the same extent. We


J.T.Ananthaswamy. It is in writing, vigned by the weatator aa
well as two witnesses. It is not regictered. 'The contents of the
Will contain recitals to the effect that, "the land measuring
about 2 1/4 acre in Sy. We. 107/4 at Halageinahundi,
Vajamangala Grama, Varuna Hobii, Myzore Taluk, which he
got from his finthex vender the Wilt, is bequeathed in favour of
Sri. Satchidenendendra Saraswathi Swamiji Public Charitable
Trust, the first defendant j in the suit. All the amount in the

bank accounts and the shares are bequeathed in favour of first

oa plointiff-J.TSursppa, As J.T.Somashekar, the fifth defendant

chad borrowed a sum of Rs.1 Lakh and his daughter had

: borrowed "Rs.25,000/- and therefore he is not bequeathing
anything to him. However, he bequeathed Rs.25,000/- to the

6th defendant's daughter. He has bequeathed a sum of

Rs.50,000/ - to the second plaintiff, the son of the first plaintiff.

He has donated a sum of Rs.1 Lakh to Sadvidya Pathashala

Education Trust, 44 defendant m the suit. The amount

remaming after paying to the aforesaid people, he has

Lo


bequeathed in favour of J.T.Surappa because, he with his .

family have looked after him very Joyaly forthe post 1G year.

36. The evidence on recond shows ra the testator before his
retirement stayed with the setond defendant whereas after
retirement he has stayed with the plaintiff, PW-1i, the first
plaintiff im categorical firms baa adinitted that the testator was
treating all. the three brothers alike 'end the testator was in
good terms with his brothers, PW 'also has reiterated what is
stated by PW1. Tre firat plaintif and defendants 5 and 6 would
have inherited the entire estate of the deceased testator in the --
absence of the Will. But, they have been disinherited.

mo 37. ~The material on record discloses that the testator
had blood pressure. He was a diabetic patient. In 2001, be

oo hed a paralytic stroke and the movement of his left hand was

| hampered. He also had heart problem. In December, 2002, he

-- had gangrene to his left Jeg. Though the testator was suffering

from ail these ailments and im fact had a paralytic stroke in
2001 itself he did not choose to make any Will. In December,
2002 first he was admitted to Vikram Nursing Home to treat

i


41

his problem of gangrene. He was an inpatient in Vikrom -
Nursing Home from 20.12.2002 to 1.1.2008. 'On 1.1.2008 he
was admitted to Basappa Memorial Hoxpital, "After 3. days of
treatment, 'his left leg was amputed on.3.1. 2003, 'Thereafter he
was shifted to Incentive Care Unit where he was there for 3 to 4
days. Thereafter he was © | shifted back to the general ward.
From that dey till 21. 1.2003 the inotaior did not chose to make
a Will. On i 1.2003, be bed 'symptoms of heart attack.
Therefore, he waa shifted to ICU. The petitioner has examined
Dr. Venkatappa & as. Pw4, - 'Through him the case sheet of
SnJ.7. Ananthaswamy of Rasappa Memorial Hospital, Mysore,
| was maticed as Ex.P99. As the testator died at about 2.30 PM
on 24.1.2003, the original Will is said to have been executed by
him between 8 to 8.30 AM on that day. In order to find out
o what ° was his state of mind, it is necessary to look into the

aforesaid medical record, at least from 22.1.2003 onwards.

38. Ex.P.99 shows the patient was confined to bed. He
was given sponge bath. Back care given. Passive exercise was

done for left hand. Psychological support was given. His left

le


leg below the knee hed been ampnied and he wee fed food

orally. In this background we have tp iook into the physscal
and mental condition from 22. 1 2003. "The special cheervation
on 22.1.2003 at about 12. 45 PM by the doctor discloses that
the testator was sweating avd ibe was feeling discomfort at
11.45 Am. Duty doctor. Was 2 informed. Sugar water was given.

Patient vomitted about 209 ml at 3, 1S PM. At 6.55 PM the
patient complained of F breathing problem and Dr.Bhaskar was
informed about the same. At 7. 30 PM BP was not recordable.

Patient was sweating. At about 9.30 PM BP was not

recordable. "Pulse was not recordable and at 9.40 PM patient

was unconscious and not responding to commands. Both the

: : pupils. were dilated, The position continued to be the same
when he was tested at 10.30 and 11.30 PM. It is on 23.1.2003
- at 12.30 AM though BP and pulse was not recordable, patient
SS was conscious, responding, pupils were dilated. At 1 AM again
the patient was unconscious, BP and pulse was not recordabk.
"At about 9.30 AM patient vomitted about 50 ml. Rytes tube
was inserted as advised by Dr.Girish, hanging the left hand

because of swelling. Thereafter patient became conscious. He



started responding to oral commands... At 1. GO Pi sips of water .
was given. On 24.1.2003, 'the crucial dais, « at 6. 30 Ant mouth |
wash was given. Back care was » given. Bed making was, . done,
At 7.10 AM patient was conscious, responding to verbal
commands. At 7.20 AM. vital sigas -- checked and marked.

At 8.00 AM bed making was dace. Position of the patient was
changed. Depaia azip. was coutinned. Dr.Shahib advised
patient help to siting position, At 11.45 AM patient was
wheezing severely. At 12. 15 PM he had severe breathing
probiem. At 2. a5 PM BP was not recordable, pulse was feeble

and he breathed his last and he died out of congestive cardiac

_ faiture and respiratory failure.

: 39, he this background, it is necessary to appreciate the

oral evidence adduced by the witnesses regarding the physical

| S and mental status of the testator. The propounder of the Will
pw-l has stated in his evidence that even when he was in the
ICU he was giving him food, milk, D Proteim, rice and rasam.
The testator was very particular that he should feed him. From

21.1.2003 till he died for 3 days he was feeding the food. On

le



24.1.2003 at 8.30 am when he visited his brother in the cu,
he requested him to shift him to the special ward after
informing the doctor as he waz bored in the ICU. 'Ai that: time
he gave him one idli and D Protein. Acconling to PW2, the
attesting witness as well 23 'the scribe of the re. Will, he took down
what the testator dictated « on 38. 1. 2008 evening. On the next
day when he handed over the typed copy of the Will to the
testator, he wert. ¢ through the will and he was fully satisfied
with the conisnts of. the Will. He asked him to get
¥.V. Shankaranarayens ¢ on 'the phone. The testator requested
both of them io attest his Will as attesting witnesses. Testator
| put hia signature 0 on the Will in their presence. In the cross-
" examiaation, be has stated that on 24.1.2003 he showed the
typed oogy of the Will to the testator. He read it once to him.
- He also read once. He signed the Will first. The testator

ms requested PW2 to send for Shankaranarayana. PW3 has stated

that the testator was in perfect state of mind according to his

understandings. He was in good health. In fact, the testator
even expressed his desire to get back to Ashrama so that he

can hear the discourses of which he was fond of. At 9.00 am

We



on 24.1.2003 the testator was on drips. On 23. 1. 2003 when he | . :
visited the testator at 3 PM the testator was, spraking about |
some Will. On 24.1.2003 he was in the hospital beiveen 9 an

to 11.15 am. The testator's condition was sound and stable.
PW4, the doctor, has stated that. on his two visits on 24.1.2003
was one of improvement and he was cheerful and had no

problems with hie speech or action. i

40. 'This oral evidence is in direct conflict with the

medical record. According to the medical record the testator

was sweating and was fully discomfort He was vomiting. The

tesintor complained of breathing problem. His BP was not

. : recordable. 'The testator was unconscious and not responding

to commands. Both the pupils were dilated. His pulse was not

; , recordabie. Though he was conscious, responding, again he

| | SS hecame unconscious. There was swelling in the left hand and
os - it was hanged. After he gained consciousness he started
- responding to oral commands. Sips of water was given. Mouth

wash was given. Back care was given. Bed making was done.

Patient was wheezing severely. He had severe breathing

Ll



problem. Pulse was feeble and breathed his last on | account of io

congestive cardiac failure and respiratory fadture. Therefore, it it

is obvious that all the four wituesses examined | on hehalf of the
plaintiffs are not speaking the 'ruth, 'it. is artificial, and
therefore, their evidence: 'cannot be believed. In the
circumstances, the materia) on second cleanly establishes that
the testator wes 'not ina sound siate of mind as weil as
physically from 22. 1. 2008 ill his death on 24.1.2003 at about
2.30. PM. 'The witl having come into existence at 8.30 AM on.
24.1. 2008 about & bours before his death certainly cannot be

said to have come into existence when the testator was in a

oo | sound state of mind.

41 . The next step would be to find out whether any
suspicious circumstances exist surrounding the execution of
| _ the Will, In the instant case it is on record that the testator

"had good relationship with the first plaintiff and defendants 5
and 6. When he was hale and healthy he did not intend to
make any Will bequeathing his property as he had no issue
and he had divorced his wife. In fact the evidence of PW2

Le


shows the testator was talking to him about the Will for the
last one month prior to his death. 'But nothing meteciedizod,
The disputed Will is said to have been executed on 24 241.2003
between 8 am to 8.30 am. The testator died on the very same
day between 2 pm to 2.40 pm ie., the Will came into existence

about 6 hours prior to his, death,

42. A perusal of the original Wil shows that in the pages

1 and 2 testator has not affioed hie signature at the bottom of

the page. The signatures in those two pages are found m the

left raargin of the sheets. It is curious to know not only in the

_ margin 'the purported signature of the testator is found, below
: the signutme of the testator, the signature of the scribe who is
also the . atiesting witness is also found. There are few

- corrections : in the said two pages and the attesting witness of

~ the scribe has initialed those corrections and not the testator.

oe os Si larly, in the last page the word "be" is struck off but there

is no initials. The date 24.1.2003 put in page No.1 left margin
below the signature appears to be in the same handwriting. No
such date is put below the purported signature of the testator

,



in page No.2 as well as in pege No.3 at pove the word

"J.T. Ananthaswamy" typed. The Will is on a white paper and
in fact after the signature of two attesting witnosscs it ia typed

as follows :-

"The above will was "dictated to me by
Sri TAnerthaswamy and t before he signed it was
read to hin ane he has approved the contents'.

43. Therefore, it is 'eleer that the said endorsement was
also typed along with 'the resi of the contents of the document.
The explanation offered by PW2, the scribe for obtamimg the
_ signature of the testator in the left hand margin is to be found

: in the re-exainination. PW2 has stated that there was no
sufficient place after typing and, therefore, his signature was
; taken in the margin. A bare perusal of the Will discloses that

| ~ there: is sufficient place at the bottom of the typed matter in

eget page for the testator to sign. Therefore, the explanation

offered, that too in the re-examination cannot be accepted. It is

to be remembered that the Will is on a white paper and it is not

registered. _~


44. The medical evidence discloses that the testator was

unconscious one day prior to the execution of the will ead even
after he regained consciousness he was completely unaware of .
what was happening around 'him, who all were attending to
him and what was done 0 him. That explains the urgency in
creation of the will which was not there for nearly one month
and carlier as probably by aa 3 + was certain that the testator
would not survive any longer. The Will has come into existence
about 6 hours prior to. his death when he was struggling for
life, and virtually he was haif dead.

_ 48. "In fact all the witnesses examined in the case are
> well educated. They are fully conscious of the legal
requirements of the Will. PW1 im his evidence is very cautious,
"im as much ae, he docs not want to give an impression that he
| ~ had any role to play in the due execution of the Will. In his

ws 7 enxiety to keep away from the execution of the Will he stated

that he saw PW2 on that day at 8.30 am im the cycle stand and
he did not see the other attesting witness at all in the hospital.

PWs2 and 3 were aware that the Will to be valid, the executant

Le


should be in a sound state of mind at the time of che execution :

of the Will. it is in that context both of them esscrted that the
testator was talking to them, was happy, he was eager to get
back to the house. PW4 the doctor who is examined to certify
the fitness of the testator, bad no role to play in the treatment
of the testator while le he wan ia. the hospital All these are
shrouded witis suspicious circuzustance. The propounder of
the Will has done. very littl: to explain and remove any of these
suspicious circumsiance which they ought to have done before
the Will could be suki to have been duly executed. Therefore,
the propounder has failed to remove the suspicious
| Giroumaimoe surrounding the execution of the Wil.

46. In so far as due execution of the Will is concerned, at
". paragraph 4 of the affidavit in examination in chief, PW2, the
SS scribe has deposed that the testator asked him to write the Will

"gs per his wish and he requeated him to take down as per his

dictation. Accordingly, he dictated on 23.1.2003 evening and
thereafter he requested him to get the typed copy on the next
day. Therefore, he got. the typed copy of the Will to him the

4


Sl

next day morning. However, while mating the original Wi, ow
questions were put to him in examination-in-chicf. "At that
time PW2 deposed that the tcetetor for a period of ome month
prior to Ex.P95 was telling him about the contents of the Will
After gathering al the inZoraation be prepared a draft He
showed the same: to the testator, "After he got it approved, he
got it typed. Both these versione we given by PW2 in
examination in chief 'tre. But, in the cross-examination he --
has sinted that on 25.1.2008 he had been to the hospital at
about 5.90 PM in the ewning, He took down the points as per |
his dictation. 'Aftcx he got typed, he destroyed the handwritten.

note, He got the Will typed om 23.1.2008 and he took the said

7 typed cony te. the testator on 24.1.2003. Thus, there are three.
versions about the preparation of the Will. |

'. 47, In so far as execution and attestation of the Will is
concerned, in the affidavit filed by way of examination in Chief,
7 PW.2 at para 5 has stated as under:-

"As said above when I handed over the --
typed copy of the will, JT. Ananthaswamy went


52

contents of the will As Mr.¥.V. Shankoranarayena :
at the time J.T Ananthaswarny asked ine to get
him over phone, Ky. _Y. V.Shankorunarogeans
reached the hospital within: half-on-hour.- AT.
Ananthaswamy requested both of us viz; myoelf

and Y.V. Shankarcnerayane: to attest his will as
attesting uritnesses. LT. Ananthasiwamy put his
signature cn the will in my presence and after his
signing the sane | signed as a attesting witness.
Thereufier Mr. VV. Shankaranarayana attested.

the will in the presenee of J.T. Ananthaswamy as

per his wish.* ae
4%. This i the evince in proof of due attestation ofthe
wat, In bis cross-examination he deposed that he showed the
"typed copy of the will to Ananthaswamy. He read it once to
him, He alse read once. He signed the will first, PW2. corrected

the mistakes, Thereafter, PW2 affixed § the signature.

i 7 Shankaranarayana. PW2 phoned him at around 8 a.m. Then

he came between 8 and 8.30 a.m. as he was staying at a
distance of Ikm. in Kalidasa Road. After Shankaranarayana
came PW2 was sitting outside the ward, Shankaranarayana
alone entered the ward. Ex.P95({1) is the signature of

L--


Shenkaranerayna came out ofthe Wand ani bbe handed over

the will to PW2.

49. After his evidence, nz was atown para S of in
affidavit set out above and was asked, whether the contents of
the same are irue and correct. 'in reply he stated as under:

: "do admit that what. is stated in paragraph
| 5 ofthe offdawit of iy examination in chief is no

Be. From th thia evidence it is clear that Shankmranarayana

has not seen the testator signing the Will. It is nobody's case
that the: testator acknowledged his signature to the Will to
- Shaniraranarayana and thereafter Shankaranarayana has
. uffixed his signature. Testator has not acknowledged his
signature to Shankaranarayana. The other attesting witness
PW2 did not see Shankaranarayana affixing his signature to

the Will. With this evidence on record, it is to be seen whether

the requirement of Section 63 of the Indian Succession Act,

1925 is fulfilled. L--


as under:-

Every testator not being a soldier employed in an
expedition nor engoged in actual warfare, [or an
airman so emplayed or engaged, cr « mariner at
sea, shall execule hiss all 'commiting to the

(a) "The 'stator shall sign or shall offic his
"marks to the will, or it shall be signed by
. "some other person. in his presence and by his

» Girediion.. ,

oa.) "The signature or mark of the testator, or the
- 'signature of the person signing for him, shail
~._ be so placed that it shall appear that it was
- indended thereby to give effect to the writing

as awill.

"<Q > The Will shall be attested by two or more
7 witnesses, each of whom has seen the
testator sign or affixed his mark to the Wiil 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 acknowledgment of his signature or

=

mark, or of the signature of such other person; and each of the wiinasses shall sign the Will in the presence of the testetsr, but if - shall not be necessary that more than one witness be present at the same time, ana no particular form of aitestation shall be 3 7 - 7 ae Me,

52. The aforesaid provision snake it clear before a Will a said to be duly executed, "the three rules mentioned in the aforesaid Section 'shall be complied with. It is mandatory. 83, 'The first Rule is the said Will should be signed by a the testator. 'ithe is incapable of signing, his mark is to be OS sfxod. aE aome other person is signing the Will, the other person shall affix his signature in the presence of the testator S and on his direction. Therefore, it is mandatory that the Will ms should contain the signature or mark to authenticate the "game, without which it cannot be said to be the Will of the testator.

54. The second rule is the signature or the mark shall be so placed on the Will, that it shall appear that it was _-

intended thereby to give effect to the writing » as a Will The ~ provision do not expressly stipulate the place where: the signature of the testator has 4 be affixed. The signature or the mark of the testator may be placed anywhere on the Will, i.c. either at the commencement or at. the end. Very often the signature of the testater and of the aticsting witnesses are found at the last page. 'The signature of the testator may be found on ail pages at the ond also. According to sub-section (b) the signature ced mot necessarily be at the end of the Will i does not matter in which bert of the Will the testator signs. If a Will is written. on 'yeveral sheets of paper, with all sheets oe severally signed, one signature on the last sheet made with the : intention of executing the whole is sufficient. The place where said signatue or mark is affixed should indicate that the person a0 signing or affixing his mark, has the intention of | * acknowledging the correctness of what is written on the page and in order to give effect to such writing which depicts his

- jntention, he shall affix his signature. Mere signature found on the Will at some place is not sufficient. if the signature is found at some place of the page and it does not appear that Lo 37 such a signature was put with enny such intention or giving :

cect to the Will then the signature or muti hia no valve. The test is whether the said. 'signature found on. ihe will, conveys the intention of the testator to give effet '0 the writing as a Will. ;

55. 'The third rules the, Will equies attestation by two or more witnesses. "Attestation means the persons, who have affixed their signatere. ais attesting witness, saw the executant, {in the case of a Wil, a tesiaton, sign or affix his mark to the instrument lf for any reason they are not present at the time oe (of the irsiator affixing his signature to the instrument, then it mo Gs obligaiary {hat they should receive from the testator a 'personal § acknowledgement of his signature or mark. It is either after seeing the testator sign the document or after

- _obiaining the personal acknowledgement of his signature, they » shall sign the Will in the presence of the testator. Therefore, not only the attesting witness should sign the Will in the presence of the testator, but they should also see with their eyes the testator signing the instrument or if they are not a present at the time of signing the instrument, the teatator | instrument.

56. Therefore, belie a Will is said. to have been duly executed, it has i pase through the dnal test presoribed under Section 68 of the Evidence Act ss well as Section 63 of the Act. Section 68 makes it clear thet the said document shall not be used vs 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. Before the execution of the Will "is held fo be proved, examination of one attesting witness at east is a raust, but that by itself will not prove the due ~ execution of the Will. The said Will also ahould satiafy the ~ ether requirements prescribed under Section 63 of the Act. In a 7 | so far as attestation is concerned, sub-rule (c) of Section 63 explains, what attestation means which is in peri materia with the definition of the word "attested" found im Section 3 of the Transfer of Property Act. Before a document is said to be duly eo attested, evidence has to be adduced to the effect thet two of. . the attesting witnesses have seen the iestator sign or alix his | mark to the Will or has secn come other person sign the Will jn the presence and by the direction of the tesiator or in order to receive from the testator a pervonai. eaknowledgement of his. signature or mark or the sigoattre of auch other person. it is thereafter cach of the aiteting witnesses shall sign the Will in the presence ¢ of ithe tentator.

57. "The aforesaid provision makes it clear for duc execution of a Wik it is not necessary that both the attesting Oe wiinesses ibe present at the same time. But, the question is if mo beth the attesting witnesses are not present at the same time Will bow is attestation proved? If only one attesting witness SS was present at the time the testator affixing his signature to oo the Will, it is obvious that the other attesting witness has not seen with his cyes the affixing of signature by the testator to the Will and also the other attesting witness signing the Will in the presence of the testator. The requirement of law is, each of he the attesting witnesses shall sign the Will im the presence of :

the testator. In such event, in order to prove due atinsiaiion, 'it | is necessary to examine both the attesting witaesses. 'Though the requirement of Section 68 of the Bvidence Act is satisfied by examining only one ; attesting. witness, in such circumstances -- the requirement of due attestation as contemplated under Section 6349} of the Act is not satisfied. Non-cxamination of the other attesting witness in such circumstances would be . fatal, if the other attesting witness is not availabie, the propounder is not helpless. To prove due attesiation under Section 63(c) it is open to the propounder of "the Will to sxmmine a person who was present at the time of % attestation, 'who saw the testator acknowledging to such attesting witness who was not present at the time of the

-. testator affixing his signature to the Will, acknowledging his SS signature or mark and then the attesting witness signing the a 7 Will in the presence of the testator. That woukd meet the requirement of clause (c) of Section 63. If an attesting witness is not present when the testator affixed his signature and if the testator docs not acknowledge his signature to the said lL 61 attesting witness, before the attcsting witness affires his . . signature to the Will, then this requirement of law is not fulfilled and the Will is not proved. In those ci ~matences, if the other attesting witness is not examined or other evidence i is not adduced regarding. ave attestation, the requirement of Section oSKe) 3 is uot compiiod with, wall is not proved.

58. The evden: on cord discloses thet the teatator, the scribe, who is also one of the attesting witness are all educated persons. 'The conients of the will is in English. It is typed. Both of them knew the signature of the testator has to | "be at the botiom of the page below the typed matter. There is % sufficient "space for the testator to put bis signature at the bottom of the page. According to them, the testator was in a . sound state of mind. Before affixing his signature, he read the ~S cont=nts of the same, and he made corrections and he has _ 7 initialed the corrections. But, he has failed to put his signature at the bottom of the page and bas chosen to put the signature at the left hand margin in the first two pages. The explanation offered by PW2, for affixing the signature in the left hand We margin, on the face of it is unacceptable, as there ie eufficient - space to affix the signature, at the bottom of the. pose. Therefore, the said signature de not indicate the intention of the testator to give effect to the writing as a Will, thus requirement under Sectiou 65(b) of the Act is not fulfilled.

59. The evitiewce > discloses that Sri { Shankaransrayana, one of the aticating witness to the will was not present at the time cf testator affixing his signature to the Will He has not seen the testator sign the Wal. It is only after PW2 attested the Will and came out, he phoned to Sri Shankaranarayana and | thereafter Sri Shankaranarayana came and entered the 1.C.U. AL What transpired in the I.C.U. he does not know as he was siaying outside the 1.C.U.. No one has spoken about what transpired in the I.C.U. Sri Shankaranarayana was not | SS exainined. PW2 has not seen Shankaranarayana attesting the will, The evidence of PW1 makes it clear, except PW2 and PW3 no one else entered the 1.C.U, Therefore, on that date Sri Shankaranarayana did not enter the I.C.U. at all. In the absence of any evidence to show that the said \ Shankaranarayana received from the testator a perwonal -- acknowledgement of his signature, 'and he. 'effvred his | signatures to the will in the presence of the teatator duc attestation is not proved. Within six hours from the time of execution of the will the stator died. Therefore, the requirement contemplated under Section 6340 of the Act is s not complied with. &, -

50. Fre the aforesaid discussion, it is clear that the testator was not ina sound atate of mind, at the time when the Will came § into existence. It has come into existence under oN suspicious: circumstances. The propounder of the Will has ' : failed to Teanove the suspicious circumstances. The attestation. aud even. iegution of the Will is not proved in accordance with

- law. Therefore, the plaintiffs are not entitled to the letters of | SS administration sought for. Hence, I pass the following order : -

| Suit is dismissed. No costs, Sd/~ " Judge