Karnataka High Court
Shantamma W/O Nagappa Tavaragondi vs Bhavanevva W/O Mallappa Tavaragondi on 23 February, 2018
Equivalent citations: 2018 (2) AKR 411, (2018) 4 KCCR 3065, (2018) 2 HINDULR 730, (2018) 3 ICC 564
Bench: S.Sujatha, John Michael Cunha
RFA No.4109/2012
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
REGULAR FIRST APPEAL NO.4109/2012 (DEC & PAR)
BETWEEN:
1. SMT.SHANTAMMA
W/O NAGAPPA TAVARAGONDI
AGE: 60 YEARS, OCC: HOUSEHOLD WORK
R/O MAKANUR, TQ: RENEBENNUR
DIST: HAVERI
2. SRI.RAMESH
S/O NAGAPPA TAVARAGONDI
AGE: 42 YEARS, OCC: AGRICULTURE
R/O. MAKANUR, TQ: RENEBENNUR
DIST: HAVERI.
3. SRI.NINGARAJ
S/O NAGAPPA TAVARAGONDI
AGE: 40 YEARS, OCC: AGRICULTURE
R/O MAKANUR, TQ: RENEBENNUR
DIST: HAVERI
4. SRI.SURESH
S/O NAGAPPA TAVARAGONDI
AGE: 38 YEARS, OCC: AGRICULTURE
R/O MAKANUR, TQ: RENEBENNUR
DIST: HAVERI
RFA No.4109/2012
:2:
5. SRI.MALATESH
S/O NAGAPPA TAVARAGONDI
AGE: 34 YEARS, OCC: AGRICULTURE
R/O MAKANUR, TQ: RENEBENNUR
DIST: HAVERI
... APPELLANTS
(BY SRI.SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
1. SMT.BHAVANEVVA
W/O MALLAPPA TAVARAGONDI
AGE: 74 YEARS, OCC: HOUSEHOLD WORK
R/O: MAKANUR, TQ: RANEBENNUR,
DIST: HAVERI
SINCE DECEASED REP. BY HER LRS
NAMELY, RESPONDENTS 2 TO 6
2. M GANGADHARAPPA
S/O. MALLAPPA TAVARAGONDI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: MAKANUR, TQ: RANEBENNUR,
DIST: HAVERI
3. SMT.YALLAVVA
S/O DHARMAPPA MEDLERI
AGE: 52 YEARS, OCC: HOUSEHOLD WORK
R/O: MAKANUR, TQ: RANEBENNUR,
DIST: HAVERI
4. SMT.SARAVAKKA
W/O TANAJEPPA PAWAR
AGE: 50 YEARS, OCC: HOUSEHOLD WORK
R/O: KAVALETTU, TQ: RANEBENNUR,
DIST: HAVERI
RFA No.4109/2012
:3:
5. SMT.SHANTAVVA
W/O SURESHRAO NAVALE
AGE: 57 YEARS, OCC: HOUSEHOLD WORK
R/O: MAKANUR, TQ: RANEBENNUR,
DIST: HAVERI
6. NIJAGUN
S/O MALLAPPA TAVARAGONDI
AGE: 42 YEARS, OCC: AUTO DRIVER AND
AGRICULTURE, R/O: MAKANUR,
TQ: RANEBENNUR, DIST: HAVERI
7. SMT.RENUKAMMA
W/O GOPALAPPA TAVARAGONDI
AGE: 50 YEARS, OCC: HOUSEHOLD WORK
R/O: MAKANUR,
TQ: RANEBENNUR, DIST: HAVERI
... RESPONDENTS
(BY SRI. S. N. BANAKAR, ADVOCATE FOR R2-R7;
R2 - R6 ARE LRS OF DECEASED R1)
---
THIS RFA IS FILED U/S.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:21.07.2012 PASSED IN
O.S.NO.31/2010 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE, RANEBENNUR, DECREEING THE SUIT FILED
FOR DECLARATION AND PARTITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.02.2018, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, JOHN
MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
RFA No.4109/2012
:4:
JUDGMENT
This is defendant's Regular First Appeal assailing the judgment and decree dated 21.07.2012 passed by the Addl. Senior Civil Judge, Ranebennur in O.S.No.31/2010.
2. The brief facts of the case are as follows:
(i) The respondents herein (hereinafter referred to as the 'plaintiffs') filed O.S.No.31/2010 for declaration that they have become the absolute owners of the suit schedule property bearing R.S.No.182 measuring 10 acres 4 guntas out of the total extent of 15 acres 8 guntas situated at Makanur village, Ta. Ranebennur, Dist. Haveri, by virtue of the Will dated 06.10.2006 executed by the deceased Nagappa Ningappa Tavaragondi, husband of defendant No.1 and father of defendants No.2 to 5. In the plaint, it was averred that the said Nagappa executed the said Will in favour of the plaintiffs being in sound state of mind, in the presence of two witnesses. He bequeathed the suit schedule properties to the plaintiffs in order to provide equal share to them in the properties held by the testator. RFA No.4109/2012 :5:
The defendants having objected to handover possession of the suit schedule properties to the plaintiffs in terms of the aforesaid Will, the plaintiffs sought for declaration and possession of the properties.
(ii) The defendants resisted the suit inter alia contending that the Will in question was a got up document. It was not executed by the deceased. The deceased was advanced in age and was suffering from loss of memory and eye sight. The late Nagappa was engaged in various litigations with the plaintiffs. He had instituted a suit in O.S.No.196/1974 against his brothers namely, Mallappa (original deceased plaintiff No.1) and Hanamappa (father-in-law of plaintiff No.2), for declaration and permanent injunction. The aforesaid Hanamappa and Mallappa in turn had instituted a suit against deceased Nagappa in O.S.No.27/1975 for partition and separate possession of the entire property held by him. Both the suits were clubbed and by a common judgment and decree, the suit filed by Late Nagappa was allowed RFA No.4109/2012 :6: declaring him as the absolute owner in possession of the suit properties. The Regular Appeals preferred by the brothers against the said judgments in R.A.No.104/1975 and 105/1975 also came to be dismissed and the said orders were ultimately confirmed by this Court in RSA No.740/1979, as a result, the deceased Nagappa had become exclusive and absolute owner of the entire properties. Therefore, there was absolutely no reason for him to bequeath the suit schedule properties to the plaintiffs, especially when he was engaged in litigation with them in respect of the very same properties. Further, it was contended that in respect of the suit schedule properties, the plaintiffs had approached the Revenue Authorities for mutation of the revenue records and the same was objected to by the defendants. In the said mutation proceedings in RTDCR No.1/2009-10, the plaintiffs did not put forward the aforesaid Will, indicating that the said Will was got up subsequent to the said proceedings with a view to lay a false claim the suit RFA No.4109/2012 :7: schedule properties. It was further contended that the Will is shrouded with suspicious circumstances; plaintiff No.1 has taken a predominant role in getting the bequest in his favour. On these grounds, the defendants sought for dismissal of the suit.
(iii) Based on the above pleadings, the trial Court framed the following issues for consideration:
1. zÁªÁ D¹ÛUÀ¼ÀÆ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼À MlÄÖ PÀÄlÄA§zÀ D¹ÛUÀ¼ÀÄ ¸ÁªÀÄÆ»PÀ PÀ¨ÁÓzÀ°è EzÉ JAzÀÄ ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2. ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀÄ zÁªÁzÀ D¹ÛUÀ¼ÀÄ ¦vÁæfð D¹Û JA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3. 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀAqÀ ºÁUÀÆ 2 jAzÀ 5£Éà ¥ÀæwªÁ¢AiÀÄgÀ vÀAzÉ £ÁUÀ¥Àà ¤AUÀ¥Àà vÁªÀgÀUÉÆA¢ EªÀgÀÄ ªÁ¢AiÀÄgÀ ºÉ¸Àj£À°è ¢£ÁAPÀ 6.10.2006 gÀAzÀÄ §gÉzÀÄPÉÆlÖ ªÀÄÈvÀÄå¥ÀvÀæzÀ ¥ÀæPÁgÀ zÁªÉÃzÀ ±ÉqÀÄå® J zÀ°A è iÀÄ 1£Éà D¹ÛUÉ, 1£Éà ªÁ¢AiÀÄ ºÁUÀÆ 2£Éà D¹ÛUÉ 2£Éà ªÁ¢AiÀÄÄ ¸ÀA¥ÀÆtð ªÀiÁ°ÃPÀ JA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
4. 2 jAzÀ 5£Éà ¥ÀæwªÁ¢AiÀÄgÀ vÀAzÉ £ÁUÀ¥Àà FvÀ£ÀÄ ªÁ¢AiÀÄgÀ ºÉ¸Àj£À°è ªÀÄÈvÀÄå ¥ÀvÀæzÀ ¥ÀæPÁgÀ §gÉzÀÄPÉÆlÖ J£ÀÄߪÀzÀ£ÀÄß ¸À馅 ªÀiÁrzÁÝgÉ CAvÁ ¥ÀæwªÁ¢UÀ¼ÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ? RFA No.4109/2012 :8:
5. C¸À® zÁªÁ £ÀA.296:94 ªÀÄvÀÄÛ 27:75£Éà zÁªÉ ºÁQzÀÝjAzÀ F zÁªÉAiÀÄÄ ªÀeÁ DUÀÄvÀÛzÉ J£ÀÄߪÀzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
6. zÁªÁ¹ÛUÀ¼À §UÉÎ ªÀÄÆ® ¥ÀÄgÀĵÀ ªÉÄʯÁgÀ¥Àà E£ÁªÀÄÄ J£ÀÄߪÀzÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
7. ªÁ¢AiÀÄgÀÄ »¸Éì ºÀPÀÄÌ ¥ÀqÉAiÀÄ®Ä CºÀðgÉ?
8. AiÀiÁªÀ DzÉñÀ ªÀÄvÀÄÛ rQæ?
(iv) The original plaintiff No.1(f) examined himself as PW1, examined the attesting witnesses as PW2 and PW3 and the scribe of the Will as PW4. In rebuttal, defendant No.4 examined himself as DW1 and also examined two more witnesses as DW2 and DW3. The parties produced in evidence Exs.P1 to P27 and Exs.D1 to D26.
(v) Considering all these materials, by the impugned judgment, the trial Court decreed the suit declaring the plaintiffs as the absolute owners of the suit schedule properties by virtue of the last Will dated 06.10.2006 executed by late Nagappa.
RFA No.4109/2012:9:
(vi) Feeling aggrieved by the impugned judgment, the defendants have preferred this appeal.
3. We have heard the learned counsel for the appellants and the learned counsel for the respondents.
4. Sri.Shriharsh A Neelopant, learned counsel appearing for the appellants has raised four fold contentions viz.,:
(i) The plaintiffs have failed to prove the Will in accordance with law. The execution of the Will is surrounded by suspicious circumstances. The deceased was aged around 60 to 70 years. He had no proper eye sight. Under the said Will, the legal heirs of the testator have been disinherited. There is no satisfactory explanation for disinheriting the natural heirs of the deceased.
(ii) The deceased was continuously engaged in litigation with plaintiff No.1 and the predecessors of plaintiff No.2 in respect of the very same properties. The RFA No.4109/2012 : 10 : civil suits were instituted by the deceased as well as by the plaintiff No.1 and the predecessor of plaintiff No.2. All the suits ended in favour of the deceased and therefore, there was absolutely no reason for the deceased to bequeath the very same properties to the plaintiff No.1 and to the predecessor of plaintiff No.2. The bequest therefore is unnatural and creates serious suspicion on the genuineness of the Will propounded by the plaintiff.
(iii) The evidence on record indicates that plaintiff No.1 has taken a predominant role in the execution of the Will and therefore, he is not entitled to claim the benefit under the said Will.
(iv) Even though the plaintiffs had contended that the will in question was executed on 06.10.2006, the same did not see the light of the day for more than four years.
Even when the revenue mutation proceedings were pending before the Deputy Commissioner, the plaintiffs did not put forward the said Will, which indicates that the Will in question was got up subsequent to the mutation RFA No.4109/2012 : 11 : proceedings in order to defeat the rights of the legal heirs of the deceased.
(v) In support of his contentions, the learned counsel has placed reliance on the following decisions:
1. AIR 1990 SC 1742 (Ram Piari Vs. Bhagwant and others)
2. AIR 1962 SC 567 (V49 C 86) (Rani Purnima Debi an Another Vs. Kumar Khagendra Narayan Deb and another)
3. AIR 1959 SC 443 (V46 C 56) (H. Venkatachala Iyengar Vs. B. N. Thimmajamma and others)
4. AIR 2002 KAR 83 (Virupakshappa Malleshappa and others Vs. Smt. Akkamahadevi and Others)
5. AIR 1990 SC 396 (Kalyan Singh Vs. Smt. Chhoti and others)
6. AIR 1965 SC 354 (Ramchandra Rambux Vs. Champabai and others)
7. AIR 2015 SC 2149 (Jagdish Chand Sharma Vs. Narain Singh Saini (Dead) thru LRs and Others)
8. ILR 2002 KAR 1407 (M. Narasimhachar and Others Vs. M. Raghavendrachar and Another) RFA No.4109/2012 : 12 :
5. Refuting the above arguments, Sri. S. N. Banakar, Learned counsel for the respondents, has argued in support of the impugned judgment. The learned counsel submits that;
i) The Will has been duly proved in accordance with Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. Both the attesting witnesses are examined before the Court. Their evidence is clear and consistent. They have clearly deposed about the mental capacity of the deceased at the time of executing the said Will. The appellants have not disputed the physical or the mental capacity of the deceased to execute the said Will, except contending that the deceased was suffering from weak eye sight. No material has been produced to show that the deceased was either suffering from weak eye sight or any such ailment which disabled him from executing the document.
ii) With regard to the bequest made under the Will, the learned counsel submits that the testator has RFA No.4109/2012 : 13 : assigned proper reasons for bequeathing the properties to his two brothers. He submits that the properties were re- granted in the name of late Nagappa. He had two brothers, namely, Hanmappa (predecessor of plaintiff No.2) and Mallappa (plaintiff No.1). Even though he had succeeded in the suit, his two brothers and their families were not left with any properties for their livelihood. Hence, with a view to provide them for their future, the deceased was prompted to execute the said Will. Therefore, solely on that ground, the Will cannot be held to be null and void, when it is established beyond doubt that the said Will was duly executed by the testator.
iii) Insofar as the delay in putting forward the Will before the Deputy Commissioner, the learned counsel would submit that the said Will was traced in the year 2009 and immediately thereafter, the plaintiffs took steps to take possession of the suit schedule properties and when the defendants raised objections, the plaintiffs were constrained to approach the Court and therefore, no RFA No.4109/2012 : 14 : motive could be ascribed to the plaintiffs on account of the said delay.
iv) The learned counsel has placed reliance on the following judgments in support of his arguments:
1. ILR 2007 KAR 3023 (Smt. Neelawwa and Others Vs. Shri. Muttanna and Another)
2. 2008 (3) KCCR 1484 (Sri. J. T. Surappa and Another Vs. Sri. Satchidhananadendra Saraswathi Swamiji Public Charitable Trust and Others)
6. We have bestowed our careful thought to the submissions made by the parties and have examined the pleadings and the evidence on record. The points that arise for our consideration are:
i. Whether the plaintiffs have proved that late Nagappa executed his last Will and testament dated 06.10.2006 being in sound state of mind?
ii. Whether the Will in question is surrounded by suspicious circumstances as contended by the defendants?RFA No.4109/2012
: 15 :
7. There is no dispute regarding the fact that the suit schedule properties absolutely belonged to late Nagappa. He died on 01.03.2007. The late Nagappa had two brothers by name Hanamappa and Mallappa. Mallappa is plaintiff No.1 and plaintiff No.2 is the daughter-in-law of late Hanamappa. It is a matter of record that, during the life time of Nagappa, he had instituted a civil suit against his brothers Mallappa and Hanamappa and the said two brothers had instituted a civil suit against Nagappa in respect of the suit schedule properties and other extent of the land held by Nagappa. It is not in dispute that all these civil proceedings ultimately ended in favour of the deceased Nagappa, as a result, the late Nagappa was declared as the sole and absolute owner of the suit schedule properties. But under the Will in question he has bequeathed 2/3rd of his properties i.e., 10 acres 4 guntas out of 15 acres to the plaintiffs.
RFA No.4109/2012: 16 :
8. The defendants, have resisted the suit mainly on the ground that the deceased had no reason to disinherit them and therefore, the Will propounded by the plaintiffs is suspicious. Further, the defendants have contended that this Will did not see the light of the day for more than four years, indicating that it was got up by the plaintiffs to defeat the rights of the defendants. The defendants have also disputed the Will on the ground that the plaintiff No.1 has taken predominant role in execution of the Will.
9. These contentions in our view cannot defeat the suit of the plaintiffs for a decree of declaration based on the Will propounded by them. In order to establish their right under the Will, the plaintiffs are required to prove the Will in accordance with law. Section 68 of the Evidence Act lays down that the Will is compulsorily attestable document and the same cannot be admitted in evidence without examining any one of the attesting witnesses. Further, Section 63 of the Indian Succession RFA No.4109/2012 : 17 : Act prescribes certain requirements for execution of an unprivileged Will.
10. In the case in hand, in order to prove the Will, the plaintiffs have examined both the attestors as PW2 and PW3. We have gone through the evidence of both these witnesses. It is seen that both the witnesses have consistently stated in their evidence that the Will in question was executed by the deceased and he subscribed his signature to the said Will in their presence and they in turn subscribed their signatures as witnesses thereto in the presence of the testators. Further, both these witnesses have stated that, at the time of executing the said Will, the deceased was in sound state of mind and the contents of the Will were read over to him by the scribe and after understanding the contents thereof, he subscribed his signature to the said Will. This evidence in our opinion is in conformity with the requirement of Section 68 of the Evidence Act as well as Section 63 of the Indian Succession Act. Even though the learned counsel RFA No.4109/2012 : 18 : for the defendants has vehemently argued that the Will is not duly proved and the signatures found on the first page and the second page of the Will are discrepant, but on going through the entire material on record, we find that the signatures of the testator has not been disputed during the course of the cross-examination of PW2 and PW3. Apparently, for this reason, the defendants have not taken any steps either to send the said signature for hand-writing examination or to get them compared with the admitted signatures of the deceased. In our considered opinion the evidence of PW2 and PW3 is more than sufficient to prove the execution and genuineness of the Will dated 06.10.2006.
11. The contention urged by the appellants that the Will is shrouded with suspicious circumstances because of the unnatural bequests made in the Will can not be a ground to discard the Will propounded by the plaintiffs. If the testator had no intention to alter the ordinary mode of succession, there was no reason for him RFA No.4109/2012 : 19 : to execute the Will. By the very nature of things, a Will is bound to result in altering the ordinary mode of succession either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heir, there is no necessity at all for him to execute a Will. Therefore, solely because the natural heirs are disinherited, it cannot be taken as a circumstance to disbelieve the Will. It is true that in the decisions relied on by the learned counsel for the appellants, referred supra, it is consistently held as a invariable proposition of law, that the testator excluding his wife and children from inheritance and preferring his brothers is an instance of suspicious circumstance as "it is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a Will, which would practically disinherit them". It is also held in the above decisions that the propounder of the Will is required to remove such suspicious circumstances by placing on record cogent and convincing evidence to RFA No.4109/2012 : 20 : satisfy the conscience of the Court that the Will in question was genuine and was intended by the testator to alter the ordinary mode of succession. It is also equally true that the burden lies on the propounder of the Will to remove all suspicious circumstances and especially when the natural heirs are disinherited, it is all the more necessary for the propounder to explain the circumstances which prompted the testator to disinherit the natural heirs.
12. In the instant case, on going through the impugned Will, it is seen that the testator has assigned proper reasons to bequeath the properties to his brother and the wife of his predeceased brother. Though it is strenuously contended that the bequest made in the Will is unnatural, yet, it is evident that the testator has not totally disinherited his wife and children. On the other hand, in the Will, it is specifically recited that, even though the testator was declared as the absolute owner of the properties by the Civil Court in the successive RFA No.4109/2012 : 21 : litigations, yet, as his two brothers were not left with any properties, with an intention to provide them for their future, he had decided to make the Will bequeathing equal share to his brothers. Therefore, the testator himself having explained the reasons for making the bequest as detailed in the Will, in our opinion, the bequest made in the Will cannot be construed as unnatural or for that matter, shrouded with suspicion as contended by the appellants. No doubt, there is no direct evidence to show that his brothers had greater love and affection towards the testator than his wife and children, but at the same time, there is no evidence either to suggest that the relationship between the testator and his brothers was strained to such an extent that love was lost between them completely. Therefore, merely because the testator and his brothers were engaged in civil litigation, it cannot be presumed that they were on inimical terms.
13. A perusal of the records indicate that the civil disputes arose between the testator and his brothers on RFA No.4109/2012 : 22 : account of the claim of ownership over the entire 15 acres of land which was regranted in the name of the testator. His brothers appears to have challenged the regrant on the specific plea that all of them were in joint possession and enjoyment of the properties and therefore, the regrant enured to the benefit of all the three brothers. Even though, ultimately the claim of the testator came to be upheld by the Civil Court, yet it is admitted by PW1 in the course of his evidence that, except the properties bequeathed under Will, the plaintiffs did not possess any of the land for their livelihood. Therefore, even the recitals of the Will to the effect that the brothers of the testator had no other properties for their livelihood is found correct. Hence, the contention of the learned counsel for the appellants that there was no justifiable reason for the testator to bequeath 3/4th of his properties to the plaintiffs cannot be accepted.
14. The last contention urged by the learned counsel for the appellants also does not merit any RFA No.4109/2012 : 23 : acceptance. No doubt it is true that the Will in question was not produced by the plaintiffs before the Revenue Authorities in the mutation proceedings for about four years after its execution, but that by itself cannot be a factor to discard the Will, especially when the plaintiffs have convincingly proved the due execution thereof. The plaintiffs would not stand to gain by withholding this document from the Revenue Authorities, when the plaintiffs had no other documents to defend their title to the bequeathed properties other than the Will executed in their favour by the deceased. PW1 has clearly stated on oath that the said Will could not be traced and therefore the same could not be produced before the Revenue Authorities. The contention of the appellants is that the Will in question was got up after the death of the deceased so as to knock off properties of the deceased. If so, the plaintiffs could fabricate the said Will only by forging the signature of the testator on the said Will. But there is no evidence on record to indicate that the signature RFA No.4109/2012 : 24 : contained in the Will was either forged or that the said Will was brought up after the death of the deceased. As already discussed above, the plaintiffs have proved the execution of the Will by examining the attesting witnesses as well as the scribe to the said document. It has also come in evidence that the plaintiffs did not play any predominant role in bringing about the said Will. On the other hand, it is proved in evidence that the said Will was executed by the deceased out of his free will without any undue influence or coercion. The signature thereon is also proved to have been subscribed by the testator in the presence of the witnesses. The appellants have not taken any steps to disprove that the signatures contained in the Will was forged. The admitted signatures of the deceased were very much available on file as per Ex.D26. Under the said circumstance, if at all, the signature found on the Will was forged as contended by the plaintiffs, it was open for the appellants to send the specimen signature of the deceased for comparison with the signature found on the RFA No.4109/2012 : 25 : Will so as to establish the plea of forgery. The appellants having not taken any steps in this regard, cannot be heard to say that the Will in question is got up only after the death of the deceased.
15. Therefore, viewed from any angle, we do not find any merit in the contention urged by the appellants. The plaintiffs having convincingly proved the due execution of the Will and the said Will being free from any suspicious circumstances, we are of the view that the trial Court was justified in decreeing the suit. On going through the impugned judgment, it is seen that the trial Court has appreciated the evidence in proper perspective and has based its finding on legal evidence. We do not find any perversity or illegality in the findings recorded by the Court below. We do not find any justifiable reason to interfere with the findings recorded by the trial Court on the question of the proof of Will as well as on the suspicious circumstances pleaded by the appellants. RFA No.4109/2012 : 26 : There is no merit in the appeal. The appeal is liable to be dismissed.
16. Accordingly, answering the above points against the appellants, we proceed to pass the following:
ORDER The appeal is dismissed.
The impugned judgment and decree dated 21.07.2012 passed by the Addl. Senior Civil Judge, Ranebennur in O.S.No.31/2010 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE gab