Karnataka High Court
Smt. Hanumamma, vs Sri. B.K. Ramaiah, on 23 July, 2021
Bench: Aravind Kumar, N.S. Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.564/2019 (PAR)
BETWEEN:
1. SMT.HANUMAMMA,
W/O BORE GOWDA,
AGED ABOUT 78 YEARS,
R/AT No.17, BAZAAR STREET,
ADUGODI, BENGALURU - 560 030.
SMT. LAKSHMAMMA,
W/O LATE G.NARASAIAH,
SINCE DEAD BY HER LRs.
2. SMT. ANUSUYA, W/O G.SURESH,
D/O LATE LAKSHMAMMA,
AGED ABOUT 58 YEARS,
R/AT No.5, ANJANADRI LAYOUT,
DODDANAGAMANGALA,
HOSA ROAD, BENGALURU - 560 100.
3. SMT. LAKSHMIDEVI.N,
W/O NANJAPPA.R,
D/O LATE LAKSHMAMMA,
AGED ABOUT 56 YEARS,
R/AT No.31/56, 3RD MAIN ROAD,
NANJAPPA BLOCK, K.G.NAGAR,
BENGALURU - 560 019.
2
4. SRI. NAGESH.N, S/O LATE NARASAISH,
S/O LATE LAKSHMAMMA,
AGED ABOUT 51 YEARS,
R/AT No.3, 1ST CROSS,
DEVEGOWDA LAYOUT,
ADUGODI, BENGALURU - 560 030.
5. SMT. NALINI, W/O L.CHANDRAMOULI,
D/O LATE LAKSHMAMMA,
AGED ABOUT 48 YEARS,
R/AT No.63/1, 12TH MAIN,
5TH CROSS, RAGHAVENDRA BLOCK,
SREENAGAR, BENGALURU - 560 050.
6. SMT. B.K.JAYAMMA,
W/O LATE M.V.SRINIVAS,
AGED:70 YEARS,
R.AT Bo.3006, 17TH CROSS,
2ND MAIN, BSK II STAGE,
K.R.ROAD, BENGALURU - 560 070.
7. SMT. B.K.CHANDRAMMA,
W/O LATE GANGADHARAPPA,
AGED ABOUT 65 YEARS,
R/AT No.915, 4TH CROSS,
III STAGE, III PHASE,
III BLOCK, BSK, BENGALURU - 560 085.
8. SMT. B.K.SAVITHRI, W/O H.V.SRIDHAR,
AGED ABOUT 62 YEARS,
R/AT No.54, 1STCROSS,,
80FT. ROAD, BHUVANESHWARI NAGAR,
KATTARIGUPPA,
BSK III STAGE, BENGALURU - 560 085.
... APPELLANTS
(BY SRI.A.MADHUSUDHANA RAO, ADV.)
AND:
1. SRI. B.K.RAMAIAH,
S/O LATE KEMPAIAH,
AGED ABOUT 73 YEARS,
3
R/AT No.183, II MAIN,
KORAMANGALA, 1ST BLOCK,
BENGALURU - 560 034.
2. SMT. N.KALPANA,
W/O LATE SRI.SHIVASHANKAR,
AGED ABOUT 58 YEARS,
No.4, GROUND FLOOR,
III MAIN, 5TH BLOCK,
RANGAPPA LAYOUT,
ITTAMADU, BSK III STAGE,
BENGALURU - 560 072. ... RESPONDENTS
(BY SRI. P.N.MANMOHAN, ADV., FOR R-1 & R-2;
R-3 IS SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED SECTION 96 OF THE CPC. AGAINST
THE JUDGMENT AND DECREE DATED 20.12.2018 PASSED IN
O.S.No.1721/2005 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
SANJAY GOWDA, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the plaintiffs who are aggrieved by dismissal of their suit O.S.No.1721/2005 in which they had 4 sought for partition of two agricultural properties and herein after referred to as Schedule 'A' and 'B' properties.
2. For the sake of convenience, the parties are referred to by their ranks in the Trial Court.
3. The plaintiffs are the sisters of defendant No.1, who is their only brother.
4. The admitted relationship of the parties are as follows:
KEMPAIAH (DIED ON 23.12.1986) LINGAMMA (WIFE) (DIED ON 09.05.1998) HANUMAMMA LAKSHMAMMA KEMPAMMA JAYAMMMA CHANDRAMMA SAVITHRI RAMAIAH Plaintiff No.1 Plaintiff No.2 Dead Plaintiff No.3 Plaintiff No.4 Plaintiff No.5 Defendant No.1 (Appelt No.1) Dead (Appelt No.6) (Appelt No.7) (Appelt No.8) (Resp No.1) Died on
05.05.2021 Anasuya Kalpana Plaintiff No.2(a) Defendant No.2 (Appelt No.2) (Respt No.2) Lakshmidevi.N Plaintiff No.2(b) (Appelt No.3) Nagesh.N Plaintiff No.2(c) (Appelt No.4) Nalini.N Plaintiff No.2(d) (Appelt No.5) Shakunthala Defendant No.3 (Respt. No.3) 5
5. Plaintiffs, the five daughters of Kempaiah, namely Hanumamma (plaintiff No.1), Lakshmamma (plaintiff No.2), Jayamma (plaintiff No.3), Chandramma (plaintiff No.4) and Savithri (plaintiff No.5) initially filed the suit against their brother B.K.Ramaiah (defendant No.1) seeking for partition of two agricultural properties. Subsequently, Kalpana (daughter of Kempamma, the third daughter of Kempaiah) was impleaded as defendant No.2.
6. Since Lakshmamma, the second daughter of Kempaiah died during the pendency of the suit, her children came to be impleaded as plaintiffs 2 (a) to (d). Lakshmamma's another daughter Shakuntala was impleaded as defendant No.3.
7. The plaintiffs stated that they are the daughters of Late Kempaiah and Lingamma and Defendant No.1, their brother, was the only son of late Kempaiah and Lingamma. They stated that all of them together constituted a joint Hindu family. The plaintiffs further stated that their father, Kempaiah, during his life time, had settled all the properties in favour of the plaintiffs 6 and defendant No. 1 and everyone had taken their respective shares and were enjoying the same.
8. They stated that their father Kempaiah had executed a registered Will dated 22.02.1984 bequeathing two properties i.e., a house property in Chinnayyanapalya where he was residing and an agricultural property bearing Sy.No.45/12 measuring 4 acres situated in Parappana Agrahara (schedule-A property), in favour of their mother Lingamma. It was stated that Lingamma after the demise of Kempaiah enjoyed the properties as an absolute owner and she thereafter settled the house property in favour of Jayamma (plaintiff No.3) and Savithri (plaintiff No.5) under a registered Partition Deed dated 02.02.1989.
9. They stated that under aforesaid Partition, Lingamma chose to retain the property measuring 4 acres (schedule-A property) for herself and Lingamma had thereafter executed a registered Will dated 16.01.1998 whereby she bequeathed schedule-A property in favour of both the plaintiffs and defendant No.1 equally. They, thus, stated that all the children of Kempaiah have equal share in schedule-A property. 7
10. They stated that on the death of Lingamma on 09.05.1998, all of them had succeeded to the property of Lingamma in equal proportions. It was also stated that the plaintiffs' request to their brother defendant No.1 to divide schedule-A property equally was not acceded to and on the other hand, he had proceeded to make an application to the revenue department for mutating katha in his individual name and had also got the revenue entries made over to his name by furnishing false information. It was further stated that on the basis of said revenue entries, he was trying to dispose of schedule-A property so as to deprive the legitimate share of the plaintiffs.
11. A further plea was raised by the plaintiffs that Kempaiah during his life time had acquired another property bearing Sy.No.45/18 measuring 4 acres situated at Parappana Agrahara under a registered Sale Deed dated 31.01.1985 (schedule-B property) and on his demise intestate plaintiffs and defendant had succeeded to Schedule 'B' property and as such plaintiffs were therefore entitled to an equal share in schedule- 'B' property.
8
12. It was stated that plaintiffs had approached the revenue authorities to get the entries changed in their names, but were informed that their names could not be entered as mutation had already been effected in favour of defendant No.1 and therefore the only remedy to them was to approach the competent Civil Court.
13. It was stated that defendant No.1 refused to heed to the advice of elders and well-wishers to effect partition and they refused to give any share to the plaintiffs and therefore, plaintiffs had no other option, but to file the suit for partition and separate possession in Schedule 'A' and 'B' properties.
14. Defendant No.1 entered appearance and contested the suit by filing written statement. It was admitted by him that his father Kempaiah during his lifetime had settled all the properties in favour of the plaintiffs and defendant and everyone had taken their respective shares and were enjoying the same. He stated that in the light of this admitted position, question of plaintiffs seeking for partition would not arise. 9
15. Defendant No.1 denied the execution of both the registered Partition Deed dated 02.02.1989 and also the Will dated 16.01.1998 executed by his mother Lingamma.
16. Defendant No.1 put forth the plea that his father Kempaiah, who had bequeathed the house property and schedule-A property in favour of his mother Lingamma, but had subsequently cancelled the said Will as it did not reflect his desire and he proceeded to execute another Will dated 10.03.1985, by which, he bequeathed schedule-A and B properties in his favour.
17. He stated that after his father Kempaiah died, plaintiff Nos.3 and 5 had created the Partition Deed dated 02.02.1989 to get over the Will dated 10.03.1985 executed by his father. He stated that since his father's earlier Will dated 22.02.1984 had been cancelled by execution of the Will dated 10.03.1985, his mother Lingamma had no right to either partition the properties under the Partition Deed dated 02.02.1989 or bequeath Schedule 'A' property under the Will dated 16.01.1998. He stated that the Partition Deed as well as the said Will were both 10 created at the instance of M.V.Srinivas, the husband of plaintiff No.3 with the sole objective of harassing him.
18. He stated that plaintiff No.5, based on the Partition Deed dated 02.02.1989, had sold the property allotted to her to one G. Arun Kumar under Sale Deed dated 26.06.2002 for an actual sale consideration of Rs.14,50,000/-, though the sale consideration stated in the Sale Deed was only Rs.5,00,000/-.
19. He stated that marriages of all his sisters except plaintiff No.5 had been celebrated during the lifetime of his father Kempaiah and as a matter of fact, all daughters had also been provided with immovable properties or assisted in procuring the same.
20. He stated that plaintiff No.1 was given a house in Audugodi which had been purchased by Kempaiah in the name of his wife Lingamma under registered Settlement Deed dated 23.03.1977.
21. He stated that plaintiff No.2 was extended financial assistance when she had constructed a house in Audugodi. 11
22. He stated that the third daughter of Kempaiah i.e., Kempamma (mother of defendant No.2 - Kalpana) had lost her husband within a year of her marriage and had returned to his house along with her only daughter Kalpana (defendant No.2) and the said Kempamma was given a site in RPC Layout, Vijaynagar, Bengaluru.
23. He stated that Kempamma passed away on 11.10.1992 leaving behind defendant No.2 as her only legal heir and she had not been made a party to the suit and therefore, the suit was bad for non-joinder of necessary parties.
24. He stated that plaintiff No.3, Jayamma, was also extended financial assistance when she constructed a house at Hanumanthanagar, Bengaluru and she had also been given a portion of father's house at Chinnayyanapalya under the alleged Partition Deed 02.02.1989.
25. He stated that plaintiff No.4, Chandramma, was provided a site at Koramangala, Bengaluru.
26. He stated that plaintiff No.5, Savithri, apart from getting financial assistance from him and his father Kempaiah to 12 purchase jewelleries, had also got a portion of his father's house at Chinnayyanapalya under the alleged Partition Deed 02.02.1989 and she had sold the same for a sum of Rs.14,50,000/-.
27. He submitted that plaintiffs and his niece Kalpana (defendant No.2) were living comfortably with their respective families.
28. He stated that his father Kempaiah was living with him till his death and he was looking after him with love and affection. He stated that he had helped his father in acquiring agricultural properties and therefore, his father had cancelled his previous Will dated 22.02.1984 and executed another Will dated 10.03.1985 whereby he bequeathed the house property in favour of his mother and the agricultural properties (schedule - A and B) in his favour.
29. He submitted that on the death of his father, he had become the absolute owner by virtue of the bequest and had continued in possession as such. He stated that he had developed schedule-A and B properties and transformed a dry 13 land into a garden land by investing huge sums of his own money and also by raising loans. He stated that by expending money and labour, he had transformed the barren piece of land into a valuable yielding land. It was stated that the plaintiffs were trying to lay a claim over the suit schedule properties only to harass him.
30. The daughter of Kempamma i.e., Kalpana who was subsequently impleaded as defendant No.2, filed a written statement supporting the case of defendant No.1.
31. The Trial Court, on consideration of pleadings framed seven issues as indicated in paragraph 34 infra.
32. Plaintiffs in support of their case examined plaintiff No.5 as PW.1 and also got 5 other witnesses examined. In all, 22 documents were exhibited as Ex. P.1 to P.22 on behalf of the plaintiffs.
33. Defendant No.1 got himself examined as DW.1 and also got examined 3 other witnesses in support of his case. Defendant No.2 got herself examined as DW.5. In all, 105 14 documents were exhibited as Ex.D.1 to D.105(d) by the defendants.
34. Trial Court considering the pleadings and evidence answered the following seven issues framed by it as stated below. As a consequence to its answer to the issues, it proceeded to dismiss the suit:
Issue ISSUES ANSWERS
No
1 Whether plaintiffs prove that their father late
Sri.Kemapiah had bequeathed suit schedule 'A' Negative
property in favour of their mother late Smt. Lingamma by executing a Will Deed dt.22.2.1984? 2 Whether plaintiffs prove that their mother late Smt.Lingamma had bequeathed suit schedule 'A' Negative property in their favour and in favour of defendant by executing a Will deed dt.16.1.1998?
3 Whether defendant proves that their father late Sri.Kempaiah had cancelled his Will Deed Affirmative dt.22.2.1984 and executed another Will Deed dt.10.3.85 and bequeathed suit schedule 'A' & 'B' properties in his favour?
4 Whether defendant proves that the suit is bad for non-joinder of necessary parties?
Affirmative 5 Whether the valuation of the suit made by the plaintiffs for the purpose of payment of Court Fee is Negative proper and the Court fee paid is proper and sufficient?
156 Whether the plaintiffs are entitled to the reliefs as Negative sought for?
7 What decree or Order? As per final order for the following reasons:
35. Being aggrieved by the dismissal of the suit, plaintiffs have preferred this appeal under Section 96 of the CPC.
36. Sri. A. Madhusudhana Rao, learned counsel appearing for appellants contended as follows:
• Trial Court has seriously erred in coming to the conclusion that the Will dated 22.02.1984 had not been proved, when the Will dated 10.03.1985 set up by defendant No.1 itself contained an admission that Kempaiah had executed the Will dated 22.02.1984 • He submitted that when once the plea of cancellation of Will by another Will had been set up, the Trial Court could not have concluded that the plaintiffs had failed to prove the execution of the Will dated 22.02.1984. 16 • The Will dated 10.03.1985 set up by defendant No.1 could not have been accepted as a genuine Will since the signature found on the said Will was opined to be a forged one by the Fingerprint Expert.
• The Will dated 10.03.1985 could not have been accepted since the attesting witnesses and the scribe of the Will were all admittedly the friends of defendant No.1 which by itself proved that the Will had been executed under suspicious circumstances.
• The Will dated 22.02.1984 executed by Kempaiah granted liberty to his wife Lingamma to settle the properties in a manner she thought fit and since Lingamma in her Will bequeathed the properties to all the children equally, it would have been held that the Will dated 22.02.1984 was a genuine Will and the Will dated 10.03.1985 set up by defendant No.1 which excluded all the daughters ought to have been disregarded as a Will executed under suspicious circumstances.17
• The circumstances surrounding the execution of the Will dated 10.03.1985 and the exclusion of legal heirs in the said Will clearly pointed to the fact that the said Will was not a genuine Will.
• The fact that the execution of the Will dated 10.03.1985 was not mentioned when the request for mutation was made and was only inserted subsequently also proved that the said Will was a forged Will.
• The numerous contradictions of the attesting witnesses regarding the manner in which the Will was executed also pointed to the fact that the said Will was not a genuine Will.
• The alleged consent letter/Will dated 27.01.1987 alleged to have been executed by Lingamma was not even pleaded and was brought on record only during the course of evidence and this by itself proved that defendant No.1 had been cooking up documents in order to defeat the genuine claim of the plaintiffs.18
• The consent letter dated 27.01.1987 executed by Lingamma could not have been accepted since she had herself executed a registered Partition Deed two years subsequently on 02.02.1989 which itself clearly indicated that the consent letter was a created document. • The fact that the Will dated 10.03.1985 set up by defendant No.1 was not even mentioned in the consent letter dated 27.01.1987 executed by Lingamma also proved that the Will dated 10.03.1985 was not genuine. • The fact that the thumb impression found on the consent letter could not be ascertained to be the LTM of Lingamma as it was smudged also indicated that it was a clear case of forgery.
• When the Will dated 10.03.1985 was opined to be a forged one and the LTM on consent letter dated 27.01.1987 could not be ascertained to be genuine, the execution of Will dated 22.02.1984 which was not in dispute, ought to have been accepted and the suit properties ought to have been divided equally between the children of Kempaiah. 19 • He relied upon the following judgments in support of his case:
CITATION FOR THE PROPOSITION AIR 1959 SC 443 : H. VENKATACHALA IYENGAR Vs. B.N.THIMMAJAMMA AND OTHERS 1LR 2008 KAR 2115 : SRI J.T.SURAPPA AND ANOTHER Vs. SRI SATCHIDHANANDENDRA Execution of a Will which was surrounded by SARASWATHI SWAMIJI PUBLIC suspicions circumstances. CHARITABLE TRUST AND OTHERS (2015) 8 SCC 615 : JAGDISH CHAND SHARMA Vs. NARAIN SINGHSAINI AND OTHERS (2010) 5 SCC 770 : First Will stands admitted when it is pleaded BALATHANDAYUTHAM AND that it was revoked by a subsequent Will. ANOTHER Vs. EZHILARASAN (1987) 2 SCC 572 : Property possessed by a Hindu female would JAGANNATHAN PILLAI Vs. become her absolute property. KUNJITHAPADAM PILLAI AND OTHERS (1990) 1 SCC 440 : HIRAJI TOLAJI BAGWAN Vs. A partition deed should be construed as a Gift SHAKUNTALA Deed or a Settlement Deed when given by the father when he was the absolute owner. (2018) 3 SCC 117: THEIRY SANTHANAMAL Vs. VISWANATHAN AND OTHERS 37. Sri. P.N.Manmohan, learned counsel appearing for
respondent/defendant No.1 contended as follows: 20 • Plaintiffs themselves had pleaded that the properties of Kempaiah had been settled in favour of both the plaintiffs and defendant No.1 during his life time itself and in view of this very plea it was clear that there had been a severance and also allotment of all properties and therefore the question of seeking a partition in the suit properties would not arise at all and the suit ought to be dismissed on this ground itself.
• Since the plaintiffs 3 and 5 put forth a specific plea that they were satisfied with the allotment of house property in their favour and had clearly stated in the Partition Deed dated 02.02.1989 to the effect that they would not claim any right whatsoever in any other property standing in the name of any other member of the family, the present suit seeking for partition was wholly untenable and they had absolutely no right to claim a share in the suit properties. • As plaintiff No.1 had executed a Settlement Deed after taking the house property in Audugodi, she could not be permitted to claim a share once again in the properties of Kempaiah.21
• The fact that there was a settlement in which properties were allotted to plaintiffs 3 and 5 itself proved that daughters were given specific properties and they could not therefore make a fresh claim by the present suit. • Kempaiah having realized that the Will dated 22.02.1984 did not reflect his actual desire had proceeded to execute the Will dated 10.03.1985 in which a clear recital was made that the earlier Will was being cancelled, which by itself, proved that plaintiffs had obtained the Will 22.02.1984 was under duress.
• The fact that both the attesting witnesses and the scribe to the Will dated 10.03.1985 had been examined and these witnesses had clearly stated that they had seen Kempaiah executing the Will and they had thereafter attested the signature of Kempaiah had rightly been accepted by the Trial Court and no fault could be found with the judgment of the Trial Court.
• The fact that under the Partition Deed dated 02.02.1989, Lingamma was allotted 4 acres, which was stated in the 22 deed itself, to be worth Rs.80,000/- while plaintiff No.3 was allotted a house property which was stated in the deed itself to be worth Rs.1,20,000/- and plaintiff No.5 was also allotted a house property which was stated to be worth Rs.2,00,000/-, by itself, proved that these two daughters had cornered a share which was worth 2 ½ times the value of schedule-A property which further proved that they were basically trying to usurp the best and most valuable piece of property to themselves thereby indicating that the case of bequest and subsequent partition set up by them was a spurious one designed to cheat other members of the family.
• He submitted that execution of the Will dated 22.02.1984 by Kempaiah in favour of his wife Lingamma and the subsequent execution of the Partition Deed dated 02.02.1989 and also the Will dated 16.01.1998 by Lingamma could not be accepted as genuine documents since the husband of plaintiff No.3, MV Srinivas, was instrumental in creation of these documents. He submitted that active involvement of M.V.Srinivas, the 23 husband of plaintiff No.3, in creation of all the documents, which ultimately resulted in his wife becoming a beneficiary, proved without a shadow of doubt that those documents were executed under suspicious circumstances.
• The evidence on record clearly indicated that it was the husband of plaintiff No.3 who had actively participated in the execution of Will dated 22.02.1984 by Kempaiah, Partition Deed dated 02.02.1989 and the subsequent Will dated 16.01.1998 by Lingamma and therefore, it was clear that an attempt was being made right from 1984 by plaintiff No.3 to somehow usurp the properties of Kempaiah.
• The fact that defendant No.1 had virtually paid the entire sale consideration for acquisition of schedule-B property had been established by production of a registered Mortgage Deed, by which 1st defendant's house had been mortgaged and a sum of Rs.35,000/- had been raised and the schedule-B property was purchased for a sum of Rs.40,000/- at about the same time. He submitted that 24 these contemporaneous event clearly established that schedule-B property was purchased entirely by the 1st defendant's contribution and the Will executed in his favour had basically acknowledged this fact. • The fact that revenue entries were changed in the year 1987 itself and the documentary evidence produced to establish that huge sums of money had been expended from 1987 till 2005 on improving the schedule properties clearly established that the Will dated 10.03.1985 had been all along accepted by the plaintiffs.
• The fact that the suit was filed in the year 2005 i.e., nearly two decades after Kempaiah died by itself indicated that the claim was a speculative claim.
• Reliance placed on the report of the Fingerprint Expert was wholly misconceived since the said expert witness has not taken into consideration the fact that Kempaiah was illiterate and his signature could not be possibly consistent.
25• The fact that even as per the suggestion made to the defendant's witness that Kempaiah's hands were shaking for nearly two years prior to his death was not even considered by the expert witness in the background of the fact that the report stated that the signature of Kempaiah was smooth and natural, had completely vitiated the evidence and also his report.
• He relied upon the following judgments in support of his contentions:
CITATION FOR THE PROPOSITION
AIR 1964 SC 529 : SHASHI
KUMAR BANERJEE Vs.
SUBODH KUMAR BANERJEE
(2019) 14 SCC 220 :
CHENNADI JALAPATHI
REDDY Vs. BADDAM
PRATAPA REDDY &
ANOTHER
EVIDENTIARY VALUE OF AN
(1963) 3 SCR 722 : PANDIT EXPERT'S OPINION
ISHWARI PRASAD MISRA Vs.
MOHAMMAD ISA
(2016) 4 SCC 571 : PREM
SAGAR MANCOHA Vs. STATE
(NCT OF DELHI)
(2010) 6 SCC 1 : SIDHARTHA
VASHISHT Vs. STATE (NCT
OF DELHI)
26
(1982) 1 SCC 20 : INDU BALA
BOSE AND OTHERS Vs.
MANINDRA CHANDRA BOSE
AND OTHERS.,
(1995) 5 SCC 215 :
VRINDAVANIBAI SAMBAJI PROOF OF WILL AND SUSPICIOUS
MANE Vs. RAMACHANDRA CIRCUMSTANCES
VITHAL GANESHKAR AND
OTHERS.,
(2004) 2 SCC 321 : UMA
DEVI NAMBIAR AND
OTHERS Vs. T.C. SIDHAN
AIR 1962 SC 567 : RANI
PURNIMA DEVI AND
MERE REGISTRATION OF WILL DID
ANOTHER Vs. KUMAR
NOT PROVE ITS DUE EXECUTION
KHAGENDRA NARAYAN DEV
AND ANOTHER
(1987) 2 SCC 555 : RAM
SARUP GUPTA Vs. BISHUN
NARAIN INTER COLLEGE
PLEADINGS AND ITS EFFECT ON THE
AIR 1996 SC 735: BHAGWATI CASE
PRASAD Vs. CHANDRAMAUL
(2013) 2 SCC 606: GIAN
CHAND AND BROS Vs.
RATTAN LAL
(1994) 4 SCC 294 : REGARDING PARTIAL PARTITION
KENCHEGOWDA Vs.
SIDDEGOWDA
(1974) 3 SCC 680 : SRI
HARASINGH CHARAN
REGARDING SCOPE OF
MOHANTY Vs. SH.
INTERFERENCE IN AN APPEAL
SURENDRA MOHANTY
38. After hearing the Learned Counsel appearing for parties and considering entire records of the trial court, in our view, the point that arises for determination in this appeal is: 27
Whether the Trial Court was justified in concluding that the Will dated 10.03.1985 (Ex.D-
105) was the last Will of Kempaiah and by this Will, whether his earlier Will dated 22.02.1984 (Ex.P-17) was cancelled?
OR Whether the judgment and decree passed by the trial court dismissing the suit is liable to be interfered on account of erroneous appreciation of evidence or non-consideration of available evidence in its proper perspective ? or deserves to be affirmed.
DISCUSSION AND FINDING:
39. This suit is an outcome of a bitter battle between seven siblings. The plaintiffs are five sisters pitted against their only brother (defendant No.1) and their niece (their deceased sister's daughter) who supported their brother.
40. It is the case of five sisters that their father Kempaiah had by a registered Will dated 22.02.1984 (Ex.P-17) bequeathed schedule-A property, an agricultural property measuring 4 acres, which he had purchased on 01.02.1957 (Ex.D-1) along 28 with a house property, to his wife Lingamma namely their mother, reserving liberty to her to deal with the said property in any manner she deemed fit, including dividing it amongst her children.
41. It is their further case that on the death of their father on 23.12.1986, their mother succeeded not only to the agricultural property measuring 4 acres (schedule A property) but also to the house property and thereafter, their mother by way of a registered Partition Deed dated 02.02.1989 (Ex.P-1), settled the house property in favour of plaintiffs 3 and 5 in two portions and had retained the schedule-A property for herself.
42. It is their further case that their mother, Lingamma, nearly a decade thereafter, had executed a registered Will dated 16.01.1998 (Ex.P-16) whereby she bequeathed schedule-A property, that is the property measuring 4 acres, in favour of all her children equally.
43. They contend that on the death of Lingamma on 09.05.1998, the bequest came into effect and they had 29 succeeded to schedule-A property jointly and equally and all of them were thus entitled to an equal share.
44. They also contend that their father, after executing the registered Will dated 22.02.1984, had purchased schedule-B property on 31.01.1985 and he had not executed any testament in respect of said property. It was their case that on their father's death on 23.12.1986, they had succeeded to schedule- 'B' property by way of intestate succession and were entitled to equal share in Schedule 'B' property also.
45. Thus, five daughters (plaintiffs) contend that they had succeeded to schedule-A property by way of a bequest from their mother and they had inherited schedule-B property from their father by way of intestate succession.
46. The sole brother of the plaintiffs (defendant No.1), on the other hand, contended that he was instrumental in the acquisition of schedule-B property and his father realising that the bequest made by him on 22.02.1984 was not reflecting his actual desire had cancelled that Will and had executed another Will dated 10.03.1985 (Ex.D-105). He stated that under this 30 Will, his father while cancelling his earlier Will dated 22.02.1984, had proceeded to bequeath both schedule-A and schedule-B properties to him. He stated that earlier bequest of the house property to his mother was restated and affirmed by his father in this will.
47. In other words, in respect of Schedule A property, the sisters set up a Will of 1984 executed by their father in favour of their mother and also set up a subsequent Will of the year 1998 executed by their mother whereby she had bequeathed schedule-A property in favour of plaintiffs and defendant No.1 and in respect of Schedule 'B' property, they claimed, by virtue of plaintiff's and Defendant No.1 being Class I heirs, on their father's intestate death, they had succeeded in respect of said property in equal proportion. Their sole brother, defendant No.1, on the other hand, contends that his father had cancelled the Will executed in favour of his mother by executing another Will on 10.03.1985 whereby he bequeathed not only schedule- A, but also schedule-B property in his favour. He, therefore, contends that his mother had no right to execute a Will bequeathing schedule-A property in favour of all her children. 31
48. The moot question that arises for consideration in this lis is as to whether all the children succeeded to the suit properties by virtue of the Will of their mother (in respect of Schedule A property) and by way of intestate succession (in respect of Schedule B property) or whether defendant No.1 alone had succeeded to schedule-A and B properties by virtue of testamentary succession i.e., the Will dated 10.03.1985 of his father?
49. The answer to this question would hinge on the fact as to whether the father, Kempaiah, had cancelled his Will dated 22.02.1984 by executing the Will dated 10.03.1985 and had bequeathed both schedule-A and B properties in favour of defendant No.1.
50. To put it differently, if defendant No.1 who propounded the Will dated 10.03.1985, whereby his father had cancelled his earlier Will dated 22.02.1984, failed to prove it, as a necessary consequence, the plaintiffs would succeed to the suit properties on the basis of the Will dated 22.02.1984 executed in favour of their mother and the subsequent bequest made by their mother 32 in respect of the suit property in favour of all the children equally.
51. Before considering this question, it would be beneficial to summarise the legal position relating to Wills as envisaged under the Indian Succession Act, 1925 (for short, 'the Act') and the Indian Evidence Act.
52. A Will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried out into effect after his death.
53. A Will can be executed by every sound person who is not a minor. If the making of the Will or any part of it is caused by fraud or coercion or if the making of it is clouded by such importunity so as to take away the free agency of the testator, the same would be void.
54. A Will may be revoked or altered by the testator at any time when he is competent to dispose of his property by a Will. 33
55. As regards the manner in which a Will is to be executed, Section 63 of the Act mandates three rules that a testator is required to adhere to.
(i) Firstly, the testator is required to sign or affix his mark to the Will. A Will can also be signed by some other person in his presence and in his direction.
(ii) Secondly, the signature of the testator should be so placed that it was intended to give effect to the writing as a Will.
(iii) Thirdly, the Will shall be attested by two or more witnesses, each of whom has seen the testator signing the Will.
56. The attesting witnesses are thereafter required to sign the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same or any particular form of attestation be made on the Will. 34
57. The attesting witnesses would be considered as attesting witnesses even if they witness the signing of the Will by some other person in the presence of the testator and under his direction. They would also be considered to be attesting witnesses if they receive a personal acknowledgment from the testator of his signature or mark or of the signature of such other person who has signed the Will in the presence of the testator and under his direction.
58. As far as revocation of Will is concerned, as per Section 70 of the Act, a Will shall be revoked on the testator's marriage or by the execution of another Will or Codicil or by some writing declaring an intention to revoke the Will, subject to the condition that the said writing is executed in the same manner as a Will.
59. A Will can also be revoked by burning or tearing or by destroying it by the testator or by some person in his presence and under his direction with the intention to revoke the Will.
60. Thus, a Will stands revoked by execution of another Will or by some writing which declares the intention of the testator 35 to revoke the Will. In either of these cases, the new Will or the writing expressing the declaration to revoke the Will is required to be executed in the same manner as is required for execution of a Will i.e., compliance of the three rules envisaged under Section 63 of the Act.
61. As far as proof of execution of the Will is concerned, since the Will is a document required to be attested by law, by virtue of Section 68 of the Indian Evidence Act, a Will is not permitted to be used as evidence unless at least one attesting witnesses has been called for the purpose of proving its execution. This requirement is subject to the condition that the attesting witness is alive and is subject to the process of the Court and is also capable of giving evidence.
62. If no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and the signature of the person executing the document is in the handwriting of that person.
63. It is also settled law that even if the execution of the Will is proved, the suspicious circumstances, if any, surrounding 36 the execution of the Will are also required to be removed by the person who propounds the Will. In fact, this principle of law is manifested in Section 61 of the Act itself which declares that any Will obtained by fraud, coercion or importunity is void.
64. It may be pertinent to state here that the Apex Court in the case of SMT.JASWANTH KAUR Vs. SMT.AMRIT KAUR & OTHERS - (1977) 1 SCC 369, after referring to the decision rendered in the case of R.VENKATACHALA IYENGAR Vs. B.N.THIMMAJAMMA - AIR 1959 SC 443 has laid down the following propositions of law:
"1. Stated generally, 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 in such matters. As in the case of proof of other documents so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for depositing as to the circumstances in which the will came to be executed.37
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious 38 circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc., 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 raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
65. In the light of the above stated legal position, in this appeal, it will have to be firstly examined as to whether the Will dated 22.02.1984 (Ex.P-17) executed by Kempaiah was revoked by his subsequent Will dated 10.03.1985 and whether it was duly executed and duly proved in the manner prescribed by law and Secondly, it will have to be examined whether the execution of the Will dated 10.03.1985 was surrounded by any suspicious circumstances.
66. The Will dated 10.03.1985 (Ex.D-105) starts with a recital that the testator was cancelling his earlier Will dated 22.02.1984. Thus, the question that the Will dated 22.02.1984 39 was revoked by the Will dated 10.03.1985 is clear and it cannot be in doubt at all.
67. A further consequence of this recital in the Will dated 10.03.1985 that the earlier Will dated 22.02.1984 was being cancelled would be that the earlier Will dated 22.02.1984 is not only admitted but it also stands proved. We say so in view of the pronunciation of the Apex Court in the case of BALATHANDAYUTHAM AND ANOTHER Vs. EZHILARASAN - (2010) 5 SCC 770, in which, it is stated as follows:
"On these facts the learned first appellate court held that when the execution of a will asserted by one party is denied by the other party, then the burden is on the party who relies on the will to prove its execution. But when the execution of the will is not denied then no burden is cast on the party who relies on a will to prove its execution. Relying on the aforesaid principle, the first appellate court held, and in our view rightly, that the existence of the first will dated 25.09.1972 has been admitted."
68. However, that would not lead to an inference that the execution of the Will dated 10.03.1985 would also stand 40 proved. In law, the propounder of this Will, i.e., B.K.Ramaiah, defendant No.1, would still be required to prove the valid execution of the Will and also establish that its execution was not surrounded by any suspicious circumstances.
69. In order to prove the execution of the Will dated 10.03.1985, the scribe T.Ramakrishne Gowda and both the attesting witnesses V.Krishnamurthy and P.Anand were examined as DW-2, DW-3 and DW-4 respectively.
70. The scribe T.Ramakrishne Gowda stated on oath that he knew the plaintiffs, defendants and their family members since a long time and that he also knew Kempaiah and Lingamma and he was in the habit of visiting them now and then. He has stated that during one such visit, Kempaiah had requested him to draft a Will and as per his instructions, he drafted the Will on 10.03.1985, read out the contents of the Will to Kempaiah, who after carefully listening to it and being satisfied about the contents, had signed the Will in his presence. He has stated that thereafter, V.Krishnamurthy and P.Anand, who were 41 present during the entire period had also affixed their signatures to the Will as attesting witnesses.
71. The attesting witnesses, V.Krishnamurthy and P.Anand, have also deposed that they had seen Kempaiah executing the Will and they had affixed their signature after seeing Kempaiah sign the Will.
72. Thus, the scribe and the two attesting witnesses have stated that the Will was drafted in the presence of Kempaiah and Kempaiah only after being satisfied about the contents of the will had affixed his signature to the Will and the attesting witnesses had affixed their signatures thereafter. This clear evidence, according to the learned counsel appearing for the respondent, Sri. Manmohan, was complete proof of the execution of the Will.
73. However, learned counsel for the appellants, Sri. A.Madhusudhana Rao contended that the signature of the testator had been denied and the said signature was referred to a handwriting expert, who after a detailed scientific examination had opined that the signature on the Will was 42 forged and therefore it had been established beyond doubt that the Will dated 10.03.1985 was not the Will of Kempaiah. He stated that the resultant position of this report was that the Will dated 10.03.1985 would have to be discarded and earlier Will dated 22.02.1984, which was not in dispute, would have to be considered as the last Will of Kempaiah.
74. Learned counsel also contended that both the attesting witnesses and the scribe were, admittedly, close friends of defendant No.1 and their evidence wherein they admitted this suggestion only reinforced the fact that the Will was a forged Will and could not be therefore accepted. He submitted that even according to the scribe, a draft Will had already been prepared and on seeing the same and noting down the instructions of Kempaiah, he had prepared the Will. However, since this draft Will was not produced before the Court, it would therefore have to be assumed that a false story was being narrated by the scribe.
75. He also submitted that since Lingamma was, as per the evidence of the scribe and attesting witnesses, present during 43 the entire process relating to the execution of the Will, Kempaiah, the testator in the natural course of human conduct, would have ensured that she also signed as a witness especially when he was cancelling the earlier Will that he had executed in her favour. He submitted that since she had not signed this Will as an attesting witness, it will have to be assumed that the Will set up by defendant No.1 was a bogus Will. He submitted if Lingamma was really aware of the Will and had witnessed the execution of the Will by her husband Kempaiah, she would not have ventured to execute a Partition Deed in 1989 and a Will in 1998. It was, therefore, his assertion that the Will dated 10.03.1985 was a forged and concocted Will.
76. He submitted that there were several contradictions in the depositions of the scribe and the attesting witnesses and therefore the Will dated 10.03.1985 ought to be taken as a concocted Will.
77. At the outset, in order to determine whether the Will dated 10.03.1985 was executed by Kempaiah, the evidence of the handwriting and document expert - Syed Asgar Imam (PW-6), 44 who is stated to be an Assistant Director of FSL, Bangalore and who has opined that the signature of Kempaiah on the Will was forged, will have to be considered.
78. PW-6 in order to submit his report (Ex.P.22) has compared the single disputed signature of Kempaiah found on the Will dated 10.03.1985 with -
a. the two undisputed signatures of Kempaiah found on the Sale Deed dated 31.01.1985 (by which schedule-B property had been purchased by Kempaiah);
b. the four undisputed signatures made by Kempaiah (on the registered Will dated 22.02.1984) and the two signatures made by Kempaiah beside his LTM's on the Will dated 22.02.1984 at the time of registration of the Will before the Sub-Registrar.
79. On comparison of the undisputed signatures found on the Sale Deed dated 31.01.1985 and Will dated 22.02.1984 with 45 the disputed signature found on the Will dated 10.03.1985, PW-6 stated as follows in his report dated 27.04.2014 (Ex.P-22):
"The admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3 are freely and firmly written along with smooth, clear, rhythmic and uniform quality of strokes formation.
XXX XXX
XXXXX
it is found that the questioned signature marked as Ex.D105(B) is not so freely and firmly writtenas that of the admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3, the quality of strokes in questioned signature marked as Ex.D105(B) is not so smooth, clear, rhythmic and uniform as that of in admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3."
80. In order to appreciate this report, it would be appropriate to reproduce all the scanned signatures of Kempaiah, which has been produced by PW-6 and which were compared by HIM in order to ascertain the genuineness of the signatures and which are a part of his report.
4647
81. As could be seen from the said scanned image, none of the nine signatures are similar. Indeed in all the signatures, the strokes are neither firm nor smooth nor fluid. In each signature of Kempaiah, the strokes forming each alphabet are inconsistent. The writing is also halting, indicating that Kempaiah had an unsteady hand.
82. A person's writing is a result of coordination of many muscles in the fingers, wrist, forearm and full arm. All of these parts come into play when a writing is created and only with constant practice, graphic maturity is reached. On attaining graphic maturity, writing becomes an automatic act. In other words, writing becomes a reflex action as a direct consequence of muscle memory.
83. However, if a person is illiterate or semi-literate, he would obviously have inadequate practice of writing and would not have thus reached graphic maturity. In other words, an illiterate or a semi-literate person would not have acquired the reflex act of writing i.e., the automatic act of writing. As a result, even if he were to learn writing the alphabets comprising 48 his name, one by one to make up his signature, by reason of insufficient and inadequate practice, the strokes would not be smooth, consistent and fluid. The net result would be that to the naked eye, the letters in his signature would be unsteady and their alignment would be haphazard.
84. It is not in dispute that Kempaiah was not a very literate person and he was working as an attender in National Dairy Research Institute. In fact, it is nobody's case that he was literate and proficient in writing. It is also obvious to the naked eye that he could barely manage to write his name in Kannada and the writing of his name was itself his signature.
85. Despite the fact that all the admitted signatures are inconsistent both in style and in its characteristics and the signature indicated that it was executed in an halting and a hesitant manner, the expert has nevertheless opined that the admitted signatures were "smooth, clear, rhythmic and uniform quality of strokes formation". In respect of the disputed signatures, he has opined "it is found that the questioned 49 signature marked as Ex.D-105 (b) is not so freely and firmly written".
86. A bare perusal of both the admitted and disputed scanned signatures extracted above indicate that the writing of Kempaiah can be described as anything but smooth, rhythmic and possessing a uniform quality of stroke formation. In fact, every stroke, in both the disputed and admitted signatures, are laboured and are riddled with tremors indicating an indefinite rhythm and an unsteady hand.
87. This basically indicates that Kempaiah had not reached graphic maturity and his signature/writing had not become an automatic/reflex act. This was obviously because of his undisputed illiteracy/semi-literacy. The fact that the expert has not even considered this fundamental aspect, in our view, vitiates his entire report and no credence can be attached to the said report.
88. In the book "Identification of Disputed Documents, Fingerprints and Ballistics" authored by Russell A. Gregory, 50 while elaborating on the Individuality of writing, the learned author has succinctly stated as follows:
"We recognise a person by his face, his figure, his walk or his talk. We do this, in spite of his smiling, or being serious, running or standing, laughing or crying. In each case, the precise details vary, but the general characteristics are there, by which we recognise him. So is the case with a person's handwriting. It is by the study and analysis of these general characteristics that the identify of a writing can be established."
89. A hand writing expert is thus required to examine these characteristics both individually and collectively and thereafter render his opinion in order to lend credence to the opinion. If the expert does not compare the admitted and disputed signatures in relation to the context of the letters found in the signatures with reference to their relative size, positioning, spacing and slant of the letters and also the alignment and shape of letters, the opinion rendered by him cannot be considered as an expert opinion worthy of acceptance.
90. In the instant case, the signature of Kempaiah contained just five letters. The expert ought to have compared each of the 51 letters and evaluated each of the five letters with reference to the above mentioned characteristics and then rendered an opinion based on the similarities or dissimilarities found in the characteristics of the letters. However, the expert has in his report stated as follows:
"The admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e),S1 to S3 are freely and firmly written along with smooth, clear, rhythmic and uniform quality of strokes formation. These admitted signatures are showing internal consistency in writing habits and possess natural variations between them without any differences in basic writing habits and they are found written by one and the same person in normal form of executions.
On examination of the admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3 on one hand and the questioned signature marked as Ex.D105(B) on the other, it is found that the questioned signature marked as Ex.D105(B) is not so freely and firmly written as that of the admitted signatures marked as Ex.D2(a), Ex.O17(b) to P17(e), S1 to S3, the quality of strokes in questioned signature marked as Ex.D105(B) is not so smooth, clear, rhythmic and uniform as that of in admitted signatures marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3. Study of line quality in questioned signature marked as Ex.D105(B) exhibits slow and copied movement of operation in its execution along with unnatural, un-rhythmic & hesitant quality of strokes formation in association with unequal pen pressure, defective and bad line quality of strokes formation, which are all the characteristics of the act of imitation forgery. In addition, the 52 questioned signature marked as Ex.D105(B) is also showing significant divergences with that of the admitted signatures marked as Ex.D2(A), Ex.P17(b) to P17(e), S1 to S3 in the minute and inconspicuous details of the execution of characters "PÉ. A, ¥À, AiÀÄ & half AiÀÄ" with respect to nature and movement of their commencement, shape and movement in formation of their body strokes, movement in combination and termination of strokes, nature and direction of finishing strokes, as found in admitted signatures are found divergent in questioned signatures with different commencement, movement, shape, formation and finish, freedom of movement, writing skill, speed, rhythm and quality of strokes formation.
The divergences in writing habits which observed in questioned signature marked as Ex.D105(B) with that of the admitted signatures marked as Ex.D2(A), Ex.P17(B) to P17(e), S1 to S3 are fundamental in nature and they are beyond the range of natural variations and intended disguise and when they are considered collectively in combination with the defective and bad line quality of questioned signatures, they lead me to venture the negative authorship of questioned signature marked as Ex.D105(B).
The questioned signature marked as Ex.D105(B) is the product of freehand imitation forgery produced in order to match the pictorial appearance of admitted signatures.
91. As could be seen from the aforesaid opinion, PW-6, the expert has merely made general and sweeping remarks on the signatures instead of specifically evaluating each word of the signature in the context of their similarities or dissimilarities. In 53 our view, the opinion of the expert is more of a general commentary than a critical evaluation of each of the signatures and it would not therefore be prudent, on the basis of this expert opinion, to record a finding that the disputed signature was the product of freehand imitation forgery.
92. In fact, the expert witness in the course of cross- examination has stated that the signature found on Ex.D-105 was that of a literate person, while such a conclusion is not even hinted in his report.
93. If one were to take into consideration that all of the six signatures of Kempaiah executed at the same time on 22.02.1984 on the Will dated 22.02.1984 (Ex.P-17) and the two signatures of Kempaiah which were found on the Sale Deed dated 31.01.1985 (Ex.D-2) differed to a very large extent both in terms of style, uniformity, alignment and shape of the letters, the only logical inference that can be gathered would be that Kempaiah's signature was consistently inconsistent. The deduction that would follow from this is that the inconsistency was the hall mark of his signatures. The inconsistency in the 54 signatures of Kempaiah cannot, however, by itself lead to the conclusion that they were forged.
94. It may also be pertinent to state here that the plaintiffs, while cross-examining the attesting witnesses to the Will dated 10.03.1985 (Ex.D-105) have clearly suggested as follows:
"It is false to suggest that at the time of writing, the hands of late Sri. Kempaiah were shaking.
It is false to suggest that since 2 years earlier to the date of his death the hands of late Sri.Kempaiah were shaking, and he was not in a position to sign."
95. This suggestion made by plaintiffs, by itself, proves that Kempaiah did not have a steady hand and therefore the question of expecting a consistent signature from him would not arise. This aspect of Kempaiah's state of health is also not indicated by the expert in his evidence. The expert, on the other hand, as noticed earlier, has stated that Kempaiah's admitted signatures in 1984 and 1985 (i.e., two years before his death in 1986) "are smooth, clear, rhythmic had a uniform quality of strokes formation" which would be patently erroneous. We are, therefore, inclined to arrive at the conclusion that the opinion of 55 the handwriting expert - PW-6 does not have credibility meriting its acceptance.
96. The Trial Court, in its judgment, has reasoned as follows regarding the evidence of the expert:
"The opinion given by PW6 marked as Ex.P22. But here on perusing the cross-examination of PW6, he failed to observe and mention the skill of signatures on Ex.S1 and S2 and also Ex.D105(b) are good or poor. In the cross- examination of PW6, he admitted that he has not mentioned the skill of disputed and admitted signatures of late Kempaiah in his opinion on ExP.22, because mere statement that the skill is not same which is claimed to be mentioned in the report is not meeting up to the scientific standards of the Handwriting examination report. Further in the cross-examination of PW6, he clearly admitted that he failed to mention the important handwriting characteristics including the movement of writing. So here on Ex.P17(b), PW6 has partially reported in his report by selecting the signature of late Kempaiah on Ex.P17. Therefore there is natural variation as observed in the disputed signature which the expert has failed to notice and wrongly reported in his report marked as Ex.P22. PW6 utterly 56 failed to depose whether signature on Ex.D105 and Ex.P17 made by a person who is literate or illiterate. Therefore theory on which PW6 relied is totally contrary to the report submitted by him. The cross-examination of PW6, goes to show that he has not mentioned the basic character of writing of a person like speed and rhythm.
The cross-examination of PW6 goes to show that he intentionally denied to comment on the characteristics of illiterate signatures. PW6 claims to have read the material in Albert Osborn's book related to illiterate signatory but has completely failed to understand which is the root cause of misleading conclusion. Further PW6 claims that unequal pen pressure is the characteristic of a forged signature, but the pen pressure cannot equal in a genuine signature and the same is called as graduated pen pressure. So here PW6 by applying his own theory has erred and deviated from the standard practice of handwriting examination profession."
97. In our view, the above reasoning of the Trial Court on this aspect is not only valid and correct, but also apt in the facts and circumstances of the case and deserves acceptance. 57
98. As regards the evidentiary value of an opinion by an expert, a 3 judge bench of the Apex Court in the case of Chennadi Jalapathi reddy vs Baddam Pratappa Reddy (ded) through LRs (2019) 14 SCC 220 has held as follows:
"10. By now, it is well settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra v. Ram Bharosey v. State of UP, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy v. State of A.P, (1996) 4 SCC 596.
11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to 58 disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
12. On the other hand, in Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Evidence Act, 1872 (hereinafter "the Evidence Act") expressly makes opinion evidence open to challenge on facts. In Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21, without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal (supra) and stressed that the Court must exercise due care and 59 caution while determining the creditworthiness of expert evidence.
13. In our considered opinion, the decisions in Murari Lal (supra) and Alamgir (supra) strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal (supra) and Alamgir (supra) do not go against the proposition stated in Shashi Kumar Banerjee (supra) that the evidence of a handwriting expert should rarely be given precedence over substantive evidence."
99. In the light of this enunciation of law, it will have to be held that it is a well settled proposition of law that the opinion of an expert witness is not binding on the Courts and the Courts possess the freedom to disregard the opinion if it is not credible or reliable.
100. Apart from the above, for more than one reason, we are satisfied that the Will dated 10.03.1985 (Ex.D-105) cannot be disregarded as being forged.
60
101. The two attesting witnesses to the Will dated 10.03.1985 i.e., V.Krishnamurthy and P.Anand have been examined as DW-3 and DW-4 respectively and the scribe T.Ramakrishne Gowda has been examined DW-2. The scribe has stated that he was instructed by Kempaiah to write the will in the presence of the witnesses and he had accordingly drafted the will. The attesting witnesses have deposed that Kempaiah had requested them to come over and in their presence, Kempaiah had given instructions to draft the will and the will was drafted. They have also stated that after the will was read over, Kempaiah being satisfied about its contents signed the will and thereafter they had affixed their signatures as attesting to the factum of the execution of the will by Kempaiah. Thus, the animus attestandi"
i.e., the intent to attest, an essential attribute of the witnesses was not only present but has also been clearly established and the execution of the will would therefore have to be held as duly proved.
102. The attesting witnesses and the scribe have also stated they knew Kempaiah since long time and they have also exhibited clear knowledge of Kempaiah's children, his 61 properties and his avocation thereby indicating they were acquainted with him.
103. Learned counsel for the appellants/plaintiffs, however, took great pains to highlight the fact that the attesting witnesses and the scribe of Ex.D-105 were good friends of the 1st defendant and therefore their evidence had no credibility. It is to be stated here that even if the scribe and the attesting witnesses were the friends of defendant No.1, that single factor would not render the Will either suspicious or doubtful. The scribe of the Will dated 10.03.1985 (Ex.D-105) was an Engineer in the PWD and it is quite probable that defendant No.1 who was working as an Engineer in Bangalore Diary was his friend. However, that, by itself, would not render the execution of the said Will, doubtful.
104. It is to be noted here that at the time of execution of Will dated 10.03.1985 (Ex.D-105), five of the six daughters of Kempaiah had already been married and 5th plaintiff alone was yet to be married. In the Will, it was not only stated clearly that Kempaiah had provided enough funds for her marriage, but it 62 has also been stated that he was bequeathing his house to his wife. Thus, Kempaiah under the Will was ensuring that the requirement of his only unmarried daughter and his wife were safeguarded adequately.
105. It should also be borne in mind that way back in 1977 itself, under the Settlement Deed dated 23.03.1977 (Ex.D-79), a house in Audugodi was settled in favour of plaintiff No.1. In the plaint at paragraph 3, the plaintiffs have themselves stated as follows:
"3. The plaintiffs and the Defendants are the daughters and son of late Kempaiah and they constitute a Joint Hindu family. During the life-time of father of the Plaintiffs and the defendant late Kempaiah, he had settled all the properties in favour of the plaintiffs and the defendant and accordingly, every-one has taken their respective shares and enjoying the same."
106. This statement has been reiterated in the affidavit submitted in lieu of evidence of plaintiff No.5. Thus, even according to the plaintiffs, Kempaiah had provided properties for all his children during his life time itself, it cannot be 63 therefore contended that Will dated 10.03.1985 was suspicious only because it had excluded his other legal heirs.
107. It is to be noted here that Kempaiah had executed his first Will on 22.02.1984 (Ex.P-17) whereby he bequeathed schedule- A property and his house to his wife Lingamma. However, after the said Will was executed, he had purchased schedule-B property for a sum of Rs.40,000/- under a registered Sale Deed dated 31.01.1985 (Ex.D-2). This schedule property was an agricultural land abutting schedule-A property. At the time of this purchase, Kempaiah was aged about 70 years and had thus been retired for at least a decade or more. It is to be noted here that plaintiff No.5 admitted during her cross-examination as follows:
"In the year 1985 myself, my father and D-1 were residing jointly. It is true to suggest that in the year 1985, D-1 was in service. I don't know if D-1 joined service in the year 1971."
108. Thus, when schedule-'B' property was acquired on 31.01.1985, Kempaiah had retired from his post of attender 64 and by then, five out of his six daughters were already married and he was living with his only son, who was employed as an Engineer in Bangalore Dairy along with his wife and the then unmarried plaintiff No.5. From these set of admitted facts, it can easily be deduced that Kempaiah's financial resources, given his advanced age and long retired life, would be rather limited. The possibility therefore that he was capable of acquiring schedule-'B' property for Rs.40,000/- on his own would not only be rather slim but also unrealistic.
109. In fact, defendant No.1 has put forth the plea that schedule-B property was acquired with his financial assistance. In order to support this plea, DW-1 has produced a registered Mortgage Deed dated 28.02.1985 (Ex.D-104) whereby he has mortgaged his residential house constructed on a plot of 4000 square feet in Koramangala Layout for a sum of Rs.35,000/-.
110. A few things can be deciphered from this mortgage of the residential property of defendant No.1.
111. Firstly, as on 1985, Ramaiah-DW-1, the only son of Kempaiah had already acquired a house property measuring 65 4000 square feet in Koramangala, a relatively affluent locality in Bangalore and was residing there not only with his father, mother, unmarried daughter but also his widowed sister and her only daughter along with his wife. This indicated that he possessed not only adequate financial resources but was also capable of financing the acquisition of schedule-B property.
112. Secondly, Kempaiah had retired as an Attender in 1971- 72 itself and he was residing with his son along with his wife, his widowed daughter and an unmarried daughter. He had also by that time, admittedly got all but one of his daughters married. He had also admittedly settled one house property in favour of one of his daughters. Given the passage of time since his retirement, the celebrations of all but one of his daughter's marriage and his advanced age, it would be safe to assume that his financial strength would most certainly not be strong enough to acquire schedule-'B' property and no material is placed by plaintiff's to establish the financial capacity of Kempaiah during 1985.
66
113. Thirdly, the proximity of the mortgage on 28.02.1985 of the 1st defendant's house for a sum of Rs. 35,000/- for purchase of schedule-'B' property on 31.01.1985 for a sale consideration of Rs.40,000/-, can only lead to the logical conclusion that schedule-'B' property was purchased using the financial resources of defendant No.1 i.e., the mortgage of his house.
114. The fact that schedule-B property was abutting schedule- A property and it was being purchased when Kempaiah was living with defendant No.1, who could not have obviously been strong financially, would only strengthen the inescapable conclusion that schedule-B property had been purchased using the financial resources of defendant No.1.
115. If these set of facts are viewed in their totality and in their proper perspective, the unmistakable inference that can be drawn would be that Kempaiah was living with defendant No.1 and they were in cordial terms and he had therefore volunteered to finance the acquisition of schedule-B property by mortgaging his own self-acquired residential property. 67
116. It would also therefore logically and rationally follow that Kempaiah would have wanted to bequeath schedule-A property, which he had acquired in 1957 and also the abutting schedule- B property, which had been purchased using his son's resources, to his only son i.e., defendant No.1.
117. In order to give effect to this desire, it is quite but natural and obvious that he had decided to cancel his earlier Will dated 22.02.1984 and bequeath both A and B schedule properties to his only son.
118. The fact that at the same time and in the very same bequest, he also safeguarded his wife's interest by reaffirming the bequest that he had made earlier to his wife of the house property establishes the normal and rational course of conduct of Kempaiah. This also reinforces the fact that he was safeguarding both his wife's and son's interests at the same time. He was also, by this bequest in favour of his son, ensuring that his son's gesture of providing financial assistance for acquiring schedule-B property was reciprocated and his son 68 was getting the property, for the acquisition of which, he had made available the necessary finances.
119. The further fact that in Ex.D-105, he has also stated that he had kept enough funds for the marriage of plaintiff No.5, only establishes that the conduct of Kempaiah in executing Ex.D-105 was not only logical but was also rational and clear.
120. The consequent conduct of the sisters after the death of Kempaiah and Lingamma also indicate that the Will executed by Kempaiah on 10.03.1985 did reflect his real and genuine desire regarding the disposition of his properties.
121. Plaintiff No.5, in her cross-examination states as under:
"It is false to suggest that D.1 has developed the suit property. My father had constructed houses in suit properties, but I cannot say on which portion of suit properties my father had constructed house. After the death of my father Defendants have not put up any construction in suit property. I don't know if D.1 had constructed compound wall surrounding suit properties. It is true to suggest that after my marriage I had not seen suit properties. It is true to suggest that I don't know what type of trees have been grown in the suit properties and how many trees are situated in suit properties.
It is false to suggest that D.1 is in exclusive possession and enjoyment of suit properties as 69 absolute owner. Except the document produced by me before court I am not having any other document to show that we are in possession of suit properties.
XXXXX It is true that I have not produced any documents as to show the plaintiffs and defendants were in the joint possession and enjoyment of the suit schedule property. In the year 1985 both A and B suit property was standing in the name of my father.
It is true to suggest that katha was not standing in the name of Lingamma in respect of A schedule property. It is false to suggest that in the year 1984 Kempaiah has bequeathed one house property in the name of Lingamma by executing another Will. It is true to suggest that as per partition deed the katha is changed. It is true to suggest that I have sold out my portion of the property allotted through the partition deed Ex.P.1."
122. This evidence of plaintiff No.5, who was unmarried as on 1985 and was living with her father, goes to show that the plaintiffs were completely unconcerned with schedule A and B properties. The statement of plaintiff No.5 that she was not aware on which portion her father had constructed the house on schedule-A property and she was unaware of the compound wall constructed around the properties also proves and indicates that plaintiff No.5 was not interested in the said properties. This conduct is natural and probable because this 70 indicates that she was satisfied with the portion of the house that was allotted to her in 1989 by her mother, which as a matter of fact, she has disposed off in 2002 and she had no concern with Schedule A and B properties.
123. It is also to be noticed here that plaintiffs 3 and 5 were prudent enough to get a registered Partition Deed executed by their mother in 1989 and thereby secure the most valuable asset of the family allotted to them i.e., the house which has been stated to be then worth Rs.2,00,000/- in the Partition Deed, while the other agricultural property Schedule 'A' property which was then worth only Rs.80,000/- was allotted to their mother. It is, therefore, simply inconceivable that they would not stake a claim over schedule A and B properties after the death of Kempaiah and would have waited for over two decades i.e., from 1986 to 2005 to file the suit.
124. The fact that none of the plaintiffs except plaintiff No.5 chose to depose before the Court also lends credence to the possibility that all of them were satisfied with the settlement of properties in their favour by Kempaiah during his lifetime and 71 they had acquiesced to the exclusive enjoyment of schedule A and B properties by defendant No.1. This also gives rise to the impression that Kempaiah had indeed bequeathed both the said properties to defendant No.1 and this was also accepted by his sisters.
125. Defendant No.1 after the death of his father in 1986 got the revenue entries mutated in his name in the year 1987 when his mother was alive and plaintiff No.5 was yet to be married. This change of entries without there being any protest at that point of time indicates that the entire family had acquiesced to his entitlement to schedule A and B properties.
126. If this conduct of the plaintiffs is viewed in the backdrop of the fact that plaintiffs 3 and 5 got the Khata of the house property changed in their name immediately after the Partition Deed dated 02.02.1989 and plaintiff No.5 also proceeded to sell property allotted to her, it becomes quite clear that none of the plaintiffs had any grievance regarding the entitlement of defendant No.1 over schedule A and B properties. 72
127. Defendant No.1 has not only produced the original Sale Deeds pertaining to schedule 'A' and 'B' properties which were in his custody, but also all the supporting revenue documents of that relevant period, such as RTC's, Tax paid receipts, Mutation records, relating to phodi, Patta and Receipt Books (Exs.D-6 to D-78, Exs.D-82 & D-83) to establish that he was in exclusive possession and enjoyment of suit schedule properties. He has also produced documents spanning over two decades which establish that he has expended monies to develop schedule A and B properties(Exs.D-84 to D-104), which reinforce the factum of his exclusive possession and enjoyment. These documents prove that it was defendant No.1 who has not only been in exclusive possession of the schedule A and B properties, but had also taken care of them as a true owner.
128. It may be relevant to notice here that plaintiff No.5 in her cross-examination asserted that her father had constructed a house on schedule A and B properties. However, the fact that the Will dated 22.02.1984 (Ex.P.17) set up by her claiming to have been executed by her father and the Partition Deed dated 02.02.1989 (Ex.P-1) executed by her mother are completely 73 silent about any house other than the one in Chinnayyanapalya which was allotted to her, is a clear pointer to the fact that the house standing on schedule 'A' and 'B' properties was indeed constructed by defendant No.1.
129. It is no doubt true that the mutation in respect of schedule 'A' and 'B' properties in favour of defendant No.1 is stated to have been made on the premise that defendant No.1 was the only son of Kempaiah and there is no clear mention of a testamentary succession, though there is an entry that it was on the basis of a Will. This insertion of words "as per will", as sought to be highlighted by Sri Madhusudhana Rao, as an afterthought thereby implying that the Will was subsequently created cannot also be accepted.
130. This is, firstly, because the challenge to the order of mutation of the year 1987 was made in 2010 i.e., five years after the suit was filed and secondly, because the plaintiffs did not seek for production of the original mutation register to establish their allegation. It must be kept in mind that the revenue records or proceedings before revenue courts cannot be 74 determinative of any fact in issue and each issue between the parties will have to be either proved or disproved before the Civil Courts independently and in accordance with law. The assertion by the plaintiffs that the revenue records were obtained by subterfuge, firstly, having not been established, and secondly not being determinative of any fact, deserves to be rejected.
131. The other two arguments that defendant No.1 had set up another Will of Lingamma dated 27.01.1987 (Ex.D-3), which was sought to be passed off as a consent letter for change of Khata and that this document was a fabricated document since the fingerprint expert had opined that the thumb impression has been smudged, cannot also be accepted as it contradicts the plea set up by the plaintiffs in the revenue proceedings.
132. The plaintiffs challenged the mutation entry in favour of defendant No.1 based on Kempaiah's Will, on the premise that the words "as per Will" had been subsequently inserted. As held earlier, this assertion was not proved by securing the original mutation register. Further, since the plaintiffs themselves allege 75 that mutation of schedule-'A' and 'B' property was being sought for by the defendant No.1 on the ground that he was the only son, the question of defendant No.1 taking advantage of the alleged fabricated Will/consent letter dated 27.01.1987 of his mother Lingamma would be untenable since Lingamma was alive in 1987 and any mutation sought for on the basis of a will when the testator was still alive would be absurd.
133. There are a few other factors which lend credence to the Will executed in favour of defendant No.1 and indicates that the earlier Will executed by Kempaiah was cancelled.
134. In the Partition Deed dated 02.02.1989, it has been stated as follows:
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135. The aforesaid recitals indicate that only Lingamma and plaintiffs 3 and 5 had constituted the joint family, which would be rather absurd, given the fact that Lingamma had six daughters and a son. The fact that there is absolutely no mention about the share they had acquired on Kempaiah's death in schedule-B property indicates that this Partition Deed was created for ulterior purposes.
136. The recital that the parties to the partition deed would not claim any other property standing in the name of their mother or in favour of any other family member also indicates that the 3rd and 5th plaintiffs were basically taking the house property in complete renunciation of any right that they may possess in respect of any property standing in the name of Lingamma or any other member of the family.
137. It may also be pertinent to state here that at the time of registration of the Will dated 22.02.1984, Kempaiah was identified by his son-in-law, M.V.Srinivas (husband of plaintiff No.3). It has also come out in the evidence that at the request of the very same M.V.Srinivas, both the attesting witnesses, both of whom were employees of the Advocate General's Office had 78 attested the Will. In fact, one of the attesting witness (PW-3) has deposed that the Will was ready when they arrived at the house and M.V.Srinivas had read out the Will and he was not aware as to who prepared the Will. From this admission made by PW.3 it is clear that M.V.Srinivas, the son-in-law, had played a leading role in the execution of the Will of Kempaiah.
138. The fact that even for the execution of the Partition Deed executed by Lingamma, (his mother-in-law), his wife (plaintiff No.3) and his unmarried sister-in-law (plaintiff No.5), M.V.Srinivas played an active role in the affairs of the family of Kempaiah is not in serious dispute.
139. Sri Y.N.Beeralingegowda, (PW-4), one of the witnesses to the Partition Deed dated 02.02.1989 (executed between Lingamma and her two daughters) has deposed that M.V.Srinivas read over the contents of the Partition Deed to Lingamma and he was also present in the office of Sub- Registrar during the registration of the Partition Deed. It is also the admitted evidence of the plaintiffs that the witnesses to the Partition Deed were the colleagues of M.V.Srinivas and they had come over to affix their signatures on his request. These facts 79 clearly establish that M.V.Srinivas, the husband of plaintiff No.3 had also played an active role in the execution of the Partition Deed also.
140. The fact that only his wife and just one other sister-in-law were being allotted a share in the only house property and no other daughters were involved in this document clouds the real motive behind the execution of the Partition Deed.
141. It is also to be noticed here that the very same M.V.Srinivas is also an attesting witness to the Will dated 16.01.1998 (Ex.P-16) executed by Lingamma. The attesting witness to the Will - Sri K.Manjunath (PW-2) has deposed that M.V.Srinivas was his friend and he had called him over to attest the Will. He has also deposed when he came to the house, the Will was already prepared and that M.V.Srinivas had read out the Will to Lingamma. He has also stated that at M.V.Srinivas's request he went to the Sub-Registrar after a few days along with M.V.Srinivas and Lingamma when the Will was registered. He has stated that at the time of execution of the Will, M.V.Srinivas's wife (plaintiff No.3) was present. Under this Will, 80 his wife has been granted a share in the schedule-A property along with other siblings.
142. These instances go to show that M.V.Srinivas was omni present and was an active participant, if not the driving force behind the execution of documents relating to the properties owned by Kempaiah and Lingamma. The active participation of M.V.Srinivas in execution of documents in which his wife was a beneficiary casts a serious doubt not only on the motive but also on the real need behind the execution of said documents.
143. It must also be kept in mind that Kempaiah and Lingamma had only one son, who was not only well educated but also well placed in life and they were residing with him and despite this they relied upon just one of their son-in-law's when it came to dividing the properties or bequeathing them, which would most definitely be unnatural. This only indicates that M.V.Srinivas was influencing all their decisions and was exploiting the situation to his benefit.
144. It is also to be noticed that it was nobody's case that neither Kempaiah nor Lingamma had any kind of a strained 81 relationship with their son and thus the execution of documents relating to their property with the involvement of just one son-in-law renders them not only unnatural and unreal but it is also indicative of an ulterior purpose.
145. Yet another factor to be kept in mind is that Kempamma, the 2nd daughter of Kempaiah and Lingamma had lost her husband within a year of her marriage and she had thereafter returned from her marital home and was staying with defendant No.1 along with her only daughter i.e., defendant No.2,. This indicates that defendant No.1, as the only son of the family, had taken up the responsibility of looking after his widowed sister and her daughter.
146. Despite the fact that she had a widowed daughter in the house, Lingamma, being a mother of six daughters and a son, chose to execute a Partition Deed in respect of the house in which she and her husband had resided in favour of just two daughters ignoring the wellbeing of her widowed daughter also renders the Partition Deed suspect.
82
147. This would have to be considered as a rather unnatural act if viewed in the background of the fact that Lingamma had settled a house property in favour of her eldest daughter in 1977 itself under Gift Deed dated 23.03.1977 (Ex.D-79). This also indicates that Lingamma and Kempaiah were being exploited by some of their children for their own interests and hence the set of documents relied upon by the plaintiffs are required to be viewed as suspicious and/or got executed for ulterior purposes.
148. Trial Court, on consideration of the evidence in great detail, has arrived at the conclusion that Kempaiah had not executed the Will dated 22.02.1984 on his own free will and volition and he had thereafter changed his mind and cancelled this Will by executing another Will dated 10.03.1985.
149. Trial Court, on appreciation of the oral evidence of the attesting witnesses, has also arrived at a conclusion that the manner in which the documents relied upon by the plaintiffs were executed and the manner in which M.V.Srinivas was involved, had rendered all those documents suspect and it 83 would not be safe to rely upon them. In our considered view, this appreciation of evidence by the Trial Court given the contextual evidence and surrounding circumstances is both rational and proper.
150. Trial Court has also taken note of the fact that despite the stated execution of a registered Will on 16.01.1998, the said Will was not pressed into service to get the mutation of the revenue records and on the other hand, revenue records were changed pursuant to the Will dated 10.03.1985 executed by Kempaiah in favour of defendant No.1 led to an inference that the Will of Lingamma dated 16.01.1998 which had been set up by the plaintiffs was also suspect. This reasoning of the Trial Court cannot be said to be improper in any manner.
151. In our view, the reasoning of the Trial Court is just and proper and cannot be said to be perverse in any manner. The Trial Court, taking into consideration the totality of circumstances and the evidence adduced by both the parties, has rightly arrived at a conclusion that defendant No.1 had established that Kempaiah had executed the Will dated 84 10.03.1985 by which he had cancelled his earlier Will dated 22.02.1984.
152. We therefore affirm the said conclusion, not only for the reasons spelt out by the Trial Court, but also of our own reasons narrated in this judgment.
153. As a necessary consequence to the above, we hold that defendant No. 1 had proved the execution of the Will dated 10.03.1985 in respect of schedule A and B properties by Kempaiah in his favour and we hold that Lingamma's subsequent Partition Deed dated 02.02.1989 and the execution of the Will dated 16.01.1998 in respect of schedule-A property have no bearing whatsoever on the 1st defendant's succession to the schedule A or B properties.
154. As a consequence, defendant No.1 would be entitled to succeed and become the owner of schedule- A and B properties exclusively by way of testamentary succession i.e., the Will dated 10.03.1985 (Ex.D-105). Hence, we affirm the judgment and decree passed by the trial court by holding there is no error committed by the trial court.
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For the reasons assigned herein above, we proceed to pass the following:
JUDGMENT
(i) Appeal is dismissed with costs throughout.
(ii) Judgment and decree dated:20.12.2018 passed by the XXXVIII Additional City Civil and Sessions Judge, Bangalore City, in O.S.No.1721/2005 is affirmed.
(iii) Registry to draw the decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE PKS