Karnataka High Court
Ramakrishnappa vs Rudramma on 27 September, 2012
Author: N.Kumar
Bench: N.Kumar
1 RSA 579/2006
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR SECOND APPEAL NO.579/2006 (DEC)
BETWEEN:-
1. RAMAKRISHNAPPA
S/O SANNA CHIKKAPPA
AGE:46 YEARS
2. SMT. JAYAMMA
D/O SANNA CHIKKAPPA
AGE:40 YEARS
3. PATHALINGAPPA
S/O SANNA CHIKKAPPA
AGE:35 YEARS
ALL ARE AGRICULTURISTS
R/O SOLLAPURA VILLAGE
CHITHRADURGA TALUK
PIN : 577501
... APPELLANTS
(BY SRI B.M. SIDDAPPA,
SRI. H. KOTRABASAPPA AND
SRI. D.K. MADHUSUDHANA, ADVs.,)
2 RSA 579/2006
AND:-
1. RUDRAMMA
W/O RAJAPPA
AGED ABOUT 43 YEARS
R/O HOLALKERE ROAD
CHITRADURGA
PIN:577501
2. SANNAPPA
S/O OBAPPA
AGE NOT KNOWN
R/O TARAGANAHALLY
CHITRADURGA TALUK
PIN : 577501
... RESPONDENTS
(BY SRI. R.G. HEGDE, ADV., FOR R1
SRI. T. BASAVARAJ, ADV., FOR R2)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DTD 29.11.2005 PASSED IN
R.A.NO 13/2005 ON THE FILE OF THE ADDL. DISTRICT
JUDGE, FTC, CHITRADURGA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE
DTD 08.12.99 PASSED IN O.S.NO.216/97 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR.DN), CHITRADURGA.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, THIS COURT DELIVERED THE FOLLOWING:
3 RSA 579/2006
JUDGEMENT
This is the defendants' second appeal against the judgment and decree of the lower Appellate Court, which has decreed the suit of the plaintiffs' for partition and separate possession and for legitimate share in the suit schedule property after setting aside the decree of the Trial Court, which has dismissed the suit.
2. For the purpose of convenience, the parties are referred to, as they are referred to in the plaint.
3. The subject matter of the suit is, six items of the agricultural land and one item of house property situate at Kasaba Hobli, Chitradurga Taluk (for short, hereinafter referred to as 'the suit property').
4 RSA 579/2006
One Gallappa is the Prospietus. He has two sons by name Kariyappa and Sanna Chikkappa. Kariyappa was married and the plaintiff is his only daughter. Sanna Chikkappa was also married and having two sons, namely, Ramakrishnappa and Pathalingappa and a daughter by name Jayamma. They are defendant Nos. 1 to 3 in the suit. All the suit properties belong to Gallappa. On his death, he left behind his two sons Kariyappa and Sanna Chikkappa. Originally, the mutation entries in respect of all the properties were standing in the name of Gallappa. After his death, when his two sons inherited the said property, khatha was made out in their joint names. The plaintiff is married and she is living with her husband at Holalkere Road, Chitradurga. After his father's death, Sanna Chikkappa continued to cultivate the schedule property along with his children. Plaintiff is in joint 5 RSA 579/2006 possession and enjoyment of the suit schedule property. When the plaintiff got cultivated the schedule property with the help of her husband, then the defendants made an attempt to dis-possess the plaintiff from the suit property. Thereafter, she made enquiries and came to know that, defendant Nos.1 and 3 have got their names mutated in respect of the suit properties. She also came to know that they have sold the land bearing Sy.No.24/p to defendant No.4 by name, Sannappa without family necessity and hence, the sale is not binding on her. Therefore, she filed a suit for declaration that she is entitled to half share in the suit properties and for partition and separate possession of her half share and to declare that the sale deed executed by the defendants in favour of Sannappa is not binding on her. 6 RSA 579/2006
4. After service of summons, defendant Nos.1 to 3 filed a joint written statement. They did not dispute the relationship with the parties. They admitted the death of the plaintiff's father and mother. After denying all the allegations in the plaint, they specifically contended that the plaintiff was married during the lifetime of her father Karriyappa and Sanna Chikkappa. At that time, all of them were living together. Whatever there was due to plaintiff had been paid to her at the time of her marriage, i.e., gold ornaments like gold necklaces worth 50 grams, gold bendole worth 20 grams and two buffaloes worth Rs.6,000/-. Sometime after her marriage, she was allotted with three mango trees giving her the right to take and pluck mango fruits from the said trees. A black tiled roofed house was also given to her. This was for her benefit. The plaintiff and her husband have been residing in 7 RSA 579/2006 Chitradurga City. Her husband is a Coconut Merchant. The plaintiff never lived after her marriage in Tegaranahatti Village. She has not cultivated the suit schedule lands at any material point of time.
5. That on 18.06.1986, the father of plaintiff has executed a registered Will in respect of his half share in the joint family properties in favour of defendant Nos.1 to 3 for the reasons narrated therein. The recitals made in the said Will disclose the intention of the testator Kariyappa. The father of plaintiff expired about few years back. Consequent upon his death, the registered Will dated 18.06.1986 came into force. By virtue of the said Will, the defendant Nos.1 and 3 have become the legal owners and are in possession and enjoyment of the suit schedule lands. The plaintiff know about the 8 RSA 579/2006 execution of the said Will, under which, half share of her father was bequeathed to defendant Nos.1 and 3. Therefore, the plaintiff has no right over the suit schedule lands, in view of the said Will. The defendant Nos.1 and 3 have applied for the change of revenue entries into their names. Accordingly, revenue entries have been made in the name of defendant Nos.1 and 3 according to law. Therefore, the revenue entries are genuine. The father of defendants is also no more.
6. During the lifetime of Kariyappa and Sanna Chikkappa, the plaintiff has executed a Karar in their favour on 27.11.1990 under which she has admitted the fact that 01 acre 20 guntas of land in Sy.No.47/11P of Sollapura Village was gifted to her. Further, she has disclaimed her share in the remaining family properties both movable and 9 RSA 579/2006 immovable. For the reasons best know to her, the plaintiff came forward to sell the above said bit of land to the defendant Nos.1 and 3. The plaintiff agreed to sell the said bit of land for Rs.45,000/-. Accordingly, the plaintiff has executed an agreement to sell it dated 12.08.1995 to the extent of -1 acre 20 guntas of land in Sy.No.47/11P of Sollapura Village in favour of defendant Nos.1 and 3. On the same day, the plaintiff has received Rs.20,000/- agreeing to receive the balance of Rs.25,000/- within three months from 12.08.1995. Within a period of three months, the plaintiff has received the said balance of Rs.25,000/- from the defendant Nos.1 and 3 and promised to execute the registered sale deed at an early date. But, after some time, the plaintiff changed her mind and refused to come to the office of Sub-Registrar. After repeated demands, the plaintiff said that the market value of the lands was 10 RSA 579/2006 more than Rs.75,000/- per acre. If the defendant Nos.1 and 3 are ready to pay over and above Rs.45,000/-, then only she would be ready to execute the sale deed. After noticing her conduct and behaviour, the defendant Nos.1 and 3 requested to her to write a shara on the agreement for having received Rs.25,000/-. But the plaintiff on the ill advice of her husband has refused to write a shara. The plaintiff has been putting her signature but purposely she has put her L.T.M. on the plaint and also on other Court papers. Her intention is bad and motivated. The plaintiff has decided to harass the defendants and cause heavy loss to them. Further, the plaintiff has made wrongful gain of Rs.45,000/- under the sale agreement dated 12.08.1995. Therefore, they have sought for dismissal of the suit. 11 RSA 579/2006
7. Thereafter, an additional written statement came to be filed by defendant Nos. 1 and 3. They contended that, Sy.No.24/4P, measuring 21 guntas situated at Sollapura Village is not at all the joint family property. It was sold to one Sannappa, Son of Obappa, Resident of Tagaranahatty by the defendant Nos.1 and 2 about four years back for valuable consideration through registered sale deed for legal necessity. Such being the case, the plaintiff has wrongly included Re.Sy.No.24/4P in the schedule of the plaint. The plaintiff is not entitled for any share in the said bit of land.
8. The 4th defendant filed a written statement. It is his specific case that the plaintiff has executed an agreement to sell the land bearing R.No.47/11P of Sollapura Village, measuring 01 acre 20 guntas for Rs.45,000/- on 12.08.1995 in favour of 12 RSA 579/2006 defendant Nos.1 and 3. On the same day, the plaintiff has received the advance amount of Rs.20,000/- from defendant Nos.1 and 3 and agreed to receive the balance of sale amount of Rs.25,000/- within three months. Defendant Nos. 1 and 3 had no sufficient money and they were short of funds. The defendant Nos.1 and 3 approached this defendant and expressed their desire to sell land bearing R.No.24/4 an extent 21 guntas of Sollapura Village. The defendant intended to purchase the said land. Sale talks took place and defendant asked them to sell the land for Rs.9,000/-. The defendant verified the title deed and revenue documents. After being satisfied about the title of defendant Nos.1 and 3, this defendant purchased the said land for Rs.9,000/- under the registered sale deed dated 11.08.1995 executed by defendants 1 and 3. Since the date of sale, the defendant has become the lawful 13 RSA 579/2006 owner in possession and enjoyment of the said bit of the land and revenue entries are made in his name. He has been cultivating the land. Thus, this defendant is a bonafide purchaser of the land for valuable consideration and his rights are protected under provisions of T.P.Act.
9. Defendant Nos.1 and 3 borrowed certain amount from their relatives in order to pay Rs.20,000/- to the plaintiff towards the advance of sale amount. This amount Rs.9,000/- plus the hand loan Rs.11,000/- in all Rs.20,000/- was paid to the plaintiff on 12.08.1995 on which date, the plaintiff has executed an agreement to sell in favour of defendant Nos.1 and 3. Hence, the plaintiff is not entitled for any share in the land purchased by this defendant.
14 RSA 579/2006
10. On the aforesaid pleadings, the Trial Court initially framed 09 issues and subsequently, four more additional issues were also framed, which reads as under:
1. Whether the plaintiff proves that the suit schedule properties are the ancestral, joint family properties herself and defendants and are in the joint possession of the same?
2. Whether the plaintiff proves that she is entitled to receive her share in the suit schedule properties? If so, what is her share and in which of the properties?
3. Whether the defendants proves that at the time of the marriage of the plaintiff gold ornaments like necklace, bendole, two buffaloes amounting to Rs.6,000/- and also allotted three mango trees and black tiled roof house were given to the plaintiff?
4. Whether defendant Nos.1 & 3 proves that on 18.06.1986 the father of the plaintiff has 15 RSA 579/2006 executed a registered will in respect of his share in the joint family properties in favour of defendant Nos.1 and 3. Accordingly, after the death of the father of the plaintiff, defendant Nos.1 and 3 become the owners of the share of the father of the plaintiff and accordingly, they are in possession of the same?
5. Whether the defendants proves during life time of Kariyappa and Sanna Chikkappa the plaintiff has execute a karar in their favour on 27.11.1990 under which she has admitted the fact that 01 acre 20 guntas of land in Sy.No.47/11P of Sollapura Village was gifted to her and further she has disclaimed her share in the remaining family properties both movables and immovables?
6. Whether the defendants proves that the plaintiff was agreed to sell the said land of 01 acre 20 guntas in Sy.No.47/11P for an amount of Rs.45,000/- and received earnest money of Rs.20,000/- and failed to executed the registered sale deed in favour of defendant Nos.1 and 3 as averred in para (6) of the written statement?16 RSA 579/2006
7. Whether the defendants proves that the plaintiff estopped by her own conduct and by agreements dated 27.11.1990 and 12.08.1995?
8. Whether the plaintiff is entitled for the relief sought for?
9. What order or decree?
Additional Issues:
1. Whether the defendants proves that the boundary as shown to the suit schedule Item Nos.5 and 6 property are not true and correct?
2. Whether the defendants proves that the item No.7 property was sold to one Sannappa S/o Obappa by defendant Nos.1 and 2 about four years back for the valuable consideration through the registered sale deed?
3. Whether plaintiff proves that defendants with a view to defraud her right sold Sy.No.24/4P to Sannappa S/o Obappa of Sollapura without 17 RSA 579/2006 family necessity and hence sale deed is not binding on her?
4. Whether defendant No.4 proves that he is a bonafide purchaser land bearing Sy.No.24/4 of Sollapura?
11. The plaintiffs in order to substantiate their claim examined PW-1 Rudramma and produced four documents, which are marked as Exs.P1 to P4. On behalf of the defendants, defendant himself has been examined as DW - 1, another attesting witness by name Dongappa has been examined as DW-2, the scribe of the Will was examined as DW-3 and they also examined five other witnesses who are examined as DWs - 4 to 8. The defendants also produced 15 documents, which are marked as Exs.D1 to D15.
12. The Trial Court on appreciation of the aforesaid oral and documentary evidence on record 18 RSA 579/2006 held that the plaintiff has proved that the schedule properties are the ancestral joint family properties of her father and father of defendants 1 and 3. However, it held that she was not in possession of the suit properties. It held that the plaintiff has failed to prove that she is entitled to half share in the suit schedule properties. It also held that defendants have proved that, at the time of the marriage of the plaintiff, gold ornaments like gold necklaces worth 50 grams, gold bendole worth 20 grams and two buffaloes worth Rs.6,000/- were given to the plaintiff. Defendant Nos.1 and 3 have also proved that the plaintiff's father had executed a registered Will dated 18.06.1986 bequeathing the suit schedule properties in their favour. Thus, after the death of the plaintiff's father, they have become the owners of the share of the plaintiff in the suit schedule property. The defendants have failed to prove that, 19 RSA 579/2006 during the lifetime of Kariyappa and Sanna Chikkappa, the plaintiff had executed a Karar on 27.11.1980 in which she has admitted the fact that 01 acre 20 guntas of land in Sy.No.47/4P was gifted to her and further she has disclaimed her share in the remaining family properties both movables and immovables. Defendants have failed to prove that they have paid a sum of Rs.45,000/- under the aforesaid agreement of the plaintiff. Defendants further failed to prove that the plaintiff has executed the agreement dated 12.08.1985. Ultimately, it held that the plaintiff is not entitled to any share in the suit schedule property.
13. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff preferred a Regular Appeal. The lower Appellate Court on re- 20 RSA 579/2006 appreciation of the entire evidence on record, formulated the following points for consideration:
i) Whether the appellant / plaintiff proves that she had half share in the suit schedule property as legal heir of deceased Kariyappa?
ii) Whether the defendant / respondent proves that the Will dated 18.06.1986 alleged to have been executed by father of the plaintiff is proved above suspicion?
iii) Whether the judgment of the Trial Court required interference?
iv) What order?
14. After hearing both the parties and looking into the entire material on record, the Appellate Court held that the Will set up by the defendant Nos.1 and 3 is not proved. They have also failed to prove Exs.D4 and D5 as the schedule properties are all joint family properties. Plaintiff is entitled to the 21 RSA 579/2006 share of her father and therefore, it set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff granting half share in the suit schedule properties. Aggrieved by the said judgment and decree of the lower Appellate Court, the defendants are in appeal.
15. This appeal was admitted on 18.06.2010 to consider the following substantial question of law:
i) Whether the lower Appellate Court has properly appreciated the evidence while coming to the conclusion that the Will as per Ex.D3 has not been proved and in this regard whether there is any perversity since the Trial court on the very same evidence had dis-
believed the Will?
ii) Whether the lower Appellate Court was also justified in the manner of consideration of the documents at Exs.D4 & D5 and the other evidence available on record?
22 RSA 579/2006
16. Learned counsel for the appellants assailing the impugned judgment and decree of the lower Appellate Court contended that the Will is a registered document. In order to prove the Will, one of the attesting witness has been examined, that apart, the scribe of the Will has been examined. It is on the basis of the evidence, the Trial Court had held that the Will is proved and the lower Appellate Court was not justified in setting aside the said finding. He also contended that when the defendants set up the Will, she has not denied the Will. Therefore, the Trial Court was justified in holding that the Will is proved. At the time of the marriage of the plaintiff, she was given gold ornaments, two buffaloes, three mango trees and a black tiled roofed house towards her share and therefore, she has not retained any right in her father's property. That apart, after 23 RSA 579/2006 coming to know of the Will, when she approached her father, to pacify her, an extent of 01 acre 20 guntas of land in Sy.No.47/11P was given to her. She in turn has agreed to sell the property to defendant Nos.1 and 3 for consideration of Rs.45,000/-. On 12.08.1995, she received a sum of Rs.20,000/- and within three months from the said date, she also received the balance amount of Rs.25,000/- and promised to execute the registered sale deed but refused to do so. She has also sold the house property in favour of Sanna Chikkappa. Therefore, he submits that the facts and circumstances clearly establishes the Will being acted upon and therefore, the lower Appellate Court committed an error in setting aside the well considered order passed by the Trial Court and acordingly, a case for interference is made out. 24 RSA 579/2006
17. Per contra, learned counsel appearing for the plaintiff submitted that, the evidence on record shows the relationship between the parties as cordial. Plaintiff is the only daughter to her father. There is no reason as to why the father has dis- inherited her only daughter. It is on record that Kariyappa was aged and was an illiterate. No material is placed on record to show that, he was in sound state of mind while executing the Will. At the same time, the propounder of the Will has not produced any evidence to dis-spell the suspicious circumstance. If really, there was a Will, the question of the plaintiff's father giving her 01 acre 20 guntas would not arise. Assuming that the property is given to the plaintiff and case of the defendants is to be believed, the plaintiff agreed to sell the property to the defendants 1 and 3 and received a sum of Rs.45,000/- and defendants 1 and 3 have not taken 25 RSA 579/2006 any steps for execution and registration of the sale deed in their favour. Similarly, the contention that there is a house property as per Ex.D5 is not substantiated by any material on record. In these circumstances, the lower Appellate Court was justified in reversing the finding of the Trial Court and granting a decree for partition as prayed for. Therefore, he submits that, no case for interference is made out in this appeal.
18. From the material on record, it is clear that the relationship between the parties is not in dispute. The schedule properties originally belong to Galappa. Mutation entries stand in his name. After his death, his two sons Kariyappa and Sanna Chikkappa succeeded to the said estate. Mutation entries were made in the name of both of them. During the lifetime of Kariyappa, there was no 26 RSA 579/2006 partition. Plaintiff is the only daughter of Kariyappa. She is married and she is living with her husband. After the death of Kariyappa, she has filed the suit for partition. When there is no dispute regarding the relationship between the parties and the nature of properties, in law, she is entitled to her half share in the suit property, which belongs to her father. Because, under the un-amended provision of Section 6(1) of the Hindu Succession Act, Kariyappa being a co-parcener on the day he died as he had left behind a female heir. Her share in the co-parcener property would devolve under Section 8 of the Hindu Succession Act and not by survivorship. Therefore, she is entitled to half share in the suit schedule properties and she is entitled to a decree for partition on that basis.
27 RSA 579/2006
19. But, share to her is denied by the defendant Nos.1 and 3 on the pretext that, during the lifetime of Kariyappa, he had executed a Will dated 18.06.1986 as per Ex.D3 bequeathing his half share in favour of defendant Nos.1 and 3. If the Will, Ex.D3 is established, then certainly, the plaintiff would not inherit the property of the father, because prior to his death, he had bequeathed the property in favour of defendants 1 and 3. Therefore, the entire case revolves around the proof of the Will. Ex.D3 is said to be the Will executed by Kariyappa and it is registered Will dated 18.06.1986. On every page, Kariyappa's L.T.M. is said to have been affixed. The scribe of the Will is DW-3 D.H.Gundu Rao. One of the attesting witness of the Will is examined as DW-2 Dongappa. Both these witnesses has spoken about the execution of the Will. Therefore, requirement of Section 68 of the Indian Evidence Act is made. But 28 RSA 579/2006 that by itself will not prove the due execution of the Will. In order to prove the Will, the propounder of the Will has to prove that on the date of the execution of the Will, the executant was in a sound state of mind. Further, if there are any suspicious circumstances surrounding the execution of the Will, it is his duty to dis-spell all the suspicious circumstances. If these two material factors are not established, notwithstanding the fact that the requirement of Section 68 has been complied with, it cannot be said that the Will is proved. The recitals of the Will itself shows that the executant was aged and the witnesses have stated that the executant has crossed the age of 60 years. No doubt, all of them have stated that he was in a sound state of mind. They are not competent witnesses to speak about the sound state of mind. It is on record that he was an illiterate. Admittedly, he has affixed his L.T.M. The 29 RSA 579/2006 evidence on record shows that he was not doing anything without consulting his younger brother. His younger brother was not doing anything without consulting his elder brother. In the entire evidence, we do not see the role of younger brother at all. Similarly, we do not see the role of DW-1 who are the beneficiaries under the Will. If the executant was a simpleton, illiterate and was dependant on his brother, it is not explained as to how he took a decision to make a Will. Four or five people from Chitradurga went to Chitradurga Sub-Registrar office and instructed the Scribe to prepare a Will and after preparation of the Will got it registered in the Sub- Registrar office. The very fact that a serious attempt is made by the propounder of the Will and their father not to be seen anywhere in connection with the registration of the execution of the Will, creates a suspicion in the mind of the Court. Infact, a bare 30 RSA 579/2006 comparison of the L.T.M. of the executant on the three pages with the L.T.M. before the Sub-Registrar Office gives an impression that, it is not the same person. There is so much variance in those two LTMs. The schedule to the Will shows the survey numbers are correctly mentioned, extent is correctly mentioned and exact boundaries are given. The scribe says that, Kariyapa and others who are with him gave instructions, who are attesting witnesses. If Kariyappa gave instructions, he being an illiterate, how without reference to the documents, he gavee the particulars is not forthcoming from the evidence on record. This is yet another suspicious circumstance. When the relationship with the members of the family was cordial, why Kariyappa dis-inherited his daughter while execution of the Will is not forthcoming. If the evidence of the defendants is to be believed, plaintiff on coming to know about 31 RSA 579/2006 the execution of the Will came to her father and made hue and cry and therefore, Kariyappa gave 01 acre 20 guntas of land in Sy.No.47/11P. After that, property has already been the subject matter of the bequest and if the property is given to her, then no corrections are made in the Will even to this date. After the property was given to her, according to the defendants, she executed an agreement of sale on 27.11.1990 during the lifetime of her father for a consideration of Rs.45,000/-. She received a sum of Rs.20,000/- on the date of the agreement. Thereafter, she received a sum of Rs.25,000/- but she did not execute the sale deed in favour of the defendants till date and the defendants have not taken any steps for enforcement of the said agreement. Similarly, it is their case that a house property is sold. Ex.D5 is a document, which does not bear her signature and those are all prior to the 32 RSA 579/2006 execution of the Will. These facts does not prove the execution of the Will. On the contrary, if these things have to be believed, and the Will is not acted upon. If, after the execution of the Will, when the daughter created a hue and cry, the father was willing to give property, whey he did not give property to his daughter before that is also not proved. Absolutely, the evidence on this aspect is silent. It is in this context, we have to see the legal position in order to find out whether the Will is duly executed or not? The Apex Court in the case of Venkatachala - vs- Thimmajamma reported in 1959 SC 443 held that:
"19. Sections 67 & 68 is complied with, that by itself is not sufficient in proof of Will. Unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the 33 RSA 579/2006 world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills, the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of Hon'ble Supreme Court own free will. Ordinarily, when the evidence adduced in support of the will is dis-interested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the 34 RSA 579/2006 propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be un-natural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be result of the testator's free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely 35 RSA 579/2006 removed before the document is accepted as the last Will of the testator".
21. Apart from the suspicious circumstances in some cases, the Will propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
21. In the light of the law laid down by the Apex Court as aforesaid, mere examining of an attesting witness and the scribe would not prove the due execution of the Will. Similarly, because the Will is registered, no weight could be given to it. A 36 RSA 579/2006 will is not a compulsory registrable document. When the facts are not in dispute, the plaintiff is the only daughter of the deceased testator, when the testator who was in good terms with his daughter, he dis- inherited property to his daughter completely, creates a suspicious circumstance. The propounder of the Will was duty bound to dis-spell the said suspicious circumstances, which he has miserably failed to do so. When the testator was an illiterate person, when the evidence on record shows that he would not do anything without consulting his younger brother, how he executed this Will and who gave him instructions regarding the execution of the Will, the particulars of the property is not forthcoming. It is yet another suspicious circumstance in the case. With naked eye, the L.T.M. found on the three pages do not tally to the L.T.M. before the Sub-Registrar. The same is also 37 RSA 579/2006 not explained. The case, which the defendants have putforth after executing the Will is not believed by both the Courts. That by itself would constitute yet another suspicious circumstance, which the propounder has failed to dis-spell. Their case shows that, after the execution of the Will, their father wanted to give a share in the property to the plaintiff. Therefore, it shows that the intention of the testator was not to deny the property to his daughter. One of the explanations is that, she was given a house property at the time of marriage, but no evidence is placed on record to establish the same. Therefore, when we look into the entire evidence on record and the conduct of the parties, the relationship that existed between the parties prior to the execution of the Will, it is clear that the Will which is now set up by the defendants 1 and 3 to deny the legitimate share of the plaintiff is not proved. The lower 38 RSA 579/2006 Appellate Court has appreciated the evidence on record and by reasoned order, has shown how the Trial Court was not justified in recording the finding that the Will is proved and it has recorded a finding that the Will is not proved. I do not find any justification to interfere with the findings of the lower Appellate Court, which is based on proper appreciation of facts and evidence on record. Hence, I pass the following order:
Appeal is dismissed.
Parties to bear their own costs.
Sd/-
JUDGE dh*