Karnataka High Court
S T Ningappa vs Nil on 13 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:21393
MFA No. 549 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 549 OF 2022 (ISA)
BETWEEN:
1. S.T. NINGAPPA,
S/O. LATE THIGULAIAH,
AGRICULTURIST,
R/O. SUJIKALLU VILLAGE,
SRIRAMAPURA HOBLI,
HOSDURGA TALUK,
CHITRAUDURGA DISTRICT 577 527.
...APPELLANT
(BY SRI GOPALAKRISHNAMURTHY C., ADVOCATE)
AND:
1. NIL
...RESPONDENT
THIS MFA IS FILED U/S.299 OF THE INDIAN SUCCESSION
ACT, AGAINST THE ORDER DATED 12.11.2021 PASSED IN P AND SC
NO.29/2019 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS
JUDGE, CHITRADURGA, REJECTING THE PETITION FILED U/S.276 OF
Digitally signed by INDIAN SUCCESSION ACT.
GEETHAKUMARI
PARLATTAYA S
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
Location: High
Court of Karnataka THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging order dated 12.11.2021 passed by Principal District and Sessions Judge, Chitradurga, in P & SC.no.29/2019, this appeal is filed.
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NC: 2024:KHC:21393 MFA No. 549 of 2022
2. Sri Gopalakrishnamurthy C, learned counsel appearing for appellant submitted that appeal was by petitioner in P&SC.no.29/2019 filed for grant of probate in respect of registered Will dated 17.09.2009 executed by S.R. Rudrachar bequeathing petition schedule property ('Property' for short) in his favour. It was submitted, though petitioner had produced original registered deed, examined attestor, scribe and also examined Smt.Kaveramma wife of testator, apart from producing death certificate of testator, Record of Rights ('RoR') which would duly prove Will, under impugned order, Probate Court rejected petition filed under Section 276 of Indian Succession Act, 1925 ('ISA' for short). It was submitted that said order was wholly untenable and called for interference.
3. It was submitted that bequeathed property originally belonged to S.S.Ramabhadrachar father of testator. After his death, testator had succeeded to it and was in possession and enjoyment thereof during his life time. It was submitted, though testator was married to Smt.Kaveramma, they did not have any issues and as there was no one to take care of him in his old age and he was also not capable of earning, he was residing with petitioner. He was provided with -3- NC: 2024:KHC:21393 MFA No. 549 of 2022 food, shelter and clothes and also medical treatment etc. Therefore, S.R.Rudrachar executed registered Will on 17.09.2009 bequeathing his property to petitioner. It was submitted that Will was executed in presence of two attestors as required by law. Two years thereafter, testator died on 29.09.2011. When petitioner filed application for mutation of his name in revenue records on basis of Will, same was refused with suggestion to obtain probate. Hence, P & SC.no.29/2019 was filed.
4. It was further submitted in said proceedings, petitioner examined himself as PW-1, attestor as PW.2, scribe as PW.3 and wife of testator as PW.4. He also got marked original registered Will, death certificate of testator, RoR of property and Citation as Exs.P1 to P4. It was submitted, even though all witnesses testified about due execution of Will and supported petition. However, even in absence of any suspicious circumstances, Probate Court without any justification rejected petition. Only reason assigned was that in column 9 and 12 of Ex.P3 - RoR, name of S.N.Ramabhadrachar was appearing instead of name of testator - S.R.Rudrachar. On said reasoning, it concluded that there was failure to establish title of testator -4- NC: 2024:KHC:21393 MFA No. 549 of 2022 in respect of bequeathed property, which would be illegal and arbitrary.
5. It was submitted, property though standing in name of S.N.Ramabhadrachar, he was none other than father of testator and had died much earlier to testator, who had succeeded to it. Same was stated in Will. Wife of testator examined as PW.4 had corroborated assertion. It was submitted, when there were no rival claims even after citation, Probate Court was not justified in rejecting petition. On above grounds, sought for allowing appeal.
6. Heard learned counsel and perused order impugned.
7. From above, point that arises for consideration is:
(i) Whether Probate Court was justified in rejecting petition on ground of title?
(ii) Whether petitioner is entitled for grant of probate?
8. Bare perusal of impugned order reveals, only reason assigned for rejection is that Ex.P3 shows property standing in name of S.N.Ramabhadrachar and therefore, testator did not have title over property and he could not have bequeathed it. -5-
NC: 2024:KHC:21393 MFA No. 549 of 2022
9. Indeed, in so far as jurisdiction of Probate Court to decide question of title, Hon'ble Supreme Court in Krishna Kumar Birla v. Rajendra Singh Lodha, reported in (2008) 4 SCC 300, held as follows:
"57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
10. In view of above ratio, point no.1 would have to be answered in negative.
11. But, as this is an appeal against rejection of petition, this Court requires to examine due satisfaction of requirements of law regarding Will for ordering issuance of probate.
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NC: 2024:KHC:21393 MFA No. 549 of 2022
12. For said purpose, it would be appropriate to refer to principles governing adjudicatory process concerning proof of Will summarised by Hon'ble Supreme Court in Shivakumar v. Sharanabasappa, reported in (2021) 11 SCC 277:
"12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.
12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.-7-
NC: 2024:KHC:21393 MFA No. 549 of 2022 12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
12.6. A circumstance is "suspicious" when it is not normal or is "not normally expected in a normal situation or is not expected of a normal person". As put by this Court, the suspicious features must be "real, germane and valid" and not merely the "fantasy of the doubting mind".
12.7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
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NC: 2024:KHC:21393 MFA No. 549 of 2022 12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."
13. In view of above, this Court would require to examine material available to record satisfaction about due execution of Will. From records, it is seen that in his petition, petitioner has stated that testator was son of S.S.Ramabhadrachar and khata of property was standing in name of testator, which Probate Court found to be incorrect on perusal of Ex.P3 - RoR. That apart, though it was stated that testator was not capable of earning due to old age and suffering from ill-health and was not having any issues, therefore residing in house of petitioner. Petitioner has not stated either about duration or time since when testator had been residing with legatee. There is no assertion about execution of Will by testator while he was in sound disposing state of mind. -9-
NC: 2024:KHC:21393 MFA No. 549 of 2022 Interestingly, there is absolutely no mention or reference to testator's wife Smt.Kaveramma in petition.
14. Even in deposition, PW.1 has not given such particulars. Deposition is absolutely bereft of any assertion or particulars about period from when testator began residing with legatee and/or about his mental, financial or other circumstances. Though, it is stated that testator died in house of legatee and about expenditure regarding treatment, same is devoid of particulars.
15. Indeed, attesting witness examined as PW.2 has deposed about execution of registered Will in favour of petitioner, he has not specifically stated testator signed Will in his presence, except stating that execution of Will by testator was within his personal knowledge. Likewise, scribe examined as PW.3 merely states that he has signed Will as scribe. Further, wife of testator examined as PW.4 though asserts that testator was her husband, property as his self-acquired property and about execution of Will in favour of legatee on 17.09.2009, she does not depose about testator residing with legatee. There is also no assertion about she being taken care of by legatee.
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NC: 2024:KHC:21393 MFA No. 549 of 2022
16. It is seen that each of above witnesses identified and got marked their respective signatures. None of them identify signature of testator. This would be fatal flaw as held by this Court in RSA no.1667/08 (Sri Karethimmaiah @ Thimmiah versus Sri H.Muddahanumaiah, disposed on 27.03.2023).
17. Further perusal of Ex.P1 reveals that it is drawn on two sheets of paper and only second page is laminated. It is also to be noted that as per petitioner, PW.4 was wife of testator and had survived him. However, there is no reason mentioned for bypassing natural course of succession. Admittedly, legatee is not related to testator or his wife. Therefore, bequeathal against natural line of succession without specific reason mentioned in Will or explanation offered by legatee or legal heir, would be a grave suspicious circumstance.
18. Above noted circumstances being not 'normal', and there being no explanation, prayer by learned counsel for petitioner for remand to enable same, would not be justified. In Shivakumar's case (supra) itself, Hon'ble Apex Court cautioned against remand on demand. It was specifically held
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NC: 2024:KHC:21393 MFA No. 549 of 2022 when there was no dearth of opportunity to lead evidence, request for remand to lead evidence and fill-up lacunae in evidence would not be justified. Point no.2 would thus require to be answered in negative as well.
19. Consequently, appeal is dismissed.
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JUDGE GRD List No.: 1 Sl No.: 57