Karnataka High Court
Sri V Kempanna S/O Sri Venkataramanappa vs Sri D Venkataramanappa on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.40/2009 (DEC/INJ)
BETWEEN:
SRI V. KEMPANNA
S/O SRI VENKATARAMANAPPA
AGED ABOUT 60 YEARS
R/O MARASANDRA VILLAGE
JALA VILLAGE
BANGALORE NORTH TALUK
BANGALORE DISTRICT-560049
... APPELLANT
[BY SRI K.ABHINAV ANAND, ADVOCATE]
AND:
1. SRI D. VENKATARAMANAPPA
SINCE DECEASED REPTD. BY HIS LRS.
1(a) SMT. GOWRAMMA
W/O LATE SRI. D. VENKATARAMANAPPA
SINCE DECEASED
RESPONDENT NO.1(b) TO R1(g),
R2 AND APPELLANT ALREADY ON RECORD
TREATED AS HER LRS THROUGH THE
ORDER DATED 02.08.2024.
1(b) SMT. GANGAMMA
D/O LATE SRI. D.VENKATARAMANAPPA
AGED ABOUT 52 YEARS
2
1(c) SRI VENKATESH
S/O LATE SRI. VENKATARAMANAPPA
SINCE DECEASED BY HIS LRS
R1(c)(i) SMT.JAYAMMA
W/O LATE SRI VENKATESH
AGED ABOUT 45 YEARS
R1(c)(ii) KUM. NAYANA
D/O LATE SRI VENKATESH
AGED ABOUT 24 YEARS
R1(c)(iii) KUM. SAHANA
D/O LATE SRI. VENKATESH
AGED ABOUT 22 YEARS
ALL ARE RESIDENTS OF
MARASANDRA VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK
BANGALORE DISTRICT-560 049.
1(d) SRI MUNIRAJU
S/O LATE SRI. D. VENKATARAMANAPPA
AGED ABOUT 44 YEARS
1(e) SMT. MUNIYAMMA
D/O LATE SRI. D. VENKATARAMANAPPA
AGED ABOUT 42 YEARS
LRS 1(a) TO 1(e) ARE RESIDENTS OF
MARASANDRA VILLAGE, MANDURU POST
BANGALORE - 560 049.
1(f) SMT. NANDAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 40 YEARS
R/O BYALAHALLI VILLAGE
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ANUGONDANAHALLI HOBLI
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(g) SMT.SAVITHRAMMA
D/O LATE SRI D.VENKATARAMANAPPA
AGED ABOUT 38 YEARS
1(h) SMT. MUNIRATHNAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 42 YEARS
1(i) SRI NAGARAJU
S/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 40 YEARS
LRS 1(G) TO 1(I) ARE RESIDENTS OF
MARASANDRA VILLAGE
MANDURU POST
BANGALORE - 560 049
1(j) SMT. BHAGYAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 36 YEARS
R/O PETTANAHALLI VILLAGE
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(k) SMT. SARITHA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 32 YEARS
R/O JADIGENAHALLI VILLAGE AND HOBLI
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(l) SMT. VIJIYAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 30 YEARS
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JANGAMAKOTE HOBLI
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT.
1(m) SRI RAVICHANDRA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 28 YEARS
R/O MARASANDRA VILLAGE
MANDURU POST
BANGALORE-560049.
[VIDE ORDER DATED 04.01.2024 RESPONDENTS 5 TO
7 SHOWN AS RESPONDENTS 1(d), (i) & (m)]
2. SRI MUNIYAPPA
S/O SRI VENKATARAMANAPPA
AGED ABOUT 37 YEARS
3. SRI GANESHA
ILLEGITIMATE S/O SRI VENKATARAMANAPPA
AGED ABOUT 31 YEARS
4. SRI SHANKARAPA
(DIED AS BACHELOR DURING THE PENDENCY
OF THE APPEAL AND APPEAL ABATED AGAINST HIM
V/O DATED 29.02.2016 & 25.10.2023)
ALL ARE RESIDENTS OF MARASANDRA VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK
BANGALORE DISTRICT.
... RESPONDENTS
[BY SRI N SHANKARA NARAYANA BHAT, ADVOCATE FOR
C/R3 AND R1(a to f) AND R2 AND R1(c)(i to iii); R1(g),
R1(h), R1(i to m) ARE SERVED;
VIDE ORDER DATED 23.11.2011,
APPEAL ABATED AS AGAINST DECEASED R4;
VIDE ORDER DATED 29.02.2016,
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APPEAL AGAINST R4 HAS ABATED;
SRI ABHINAV R., ADVOCATE FOR R5 TO R7;
VIDE ORDER DATED 02.08.2024, R1(b to g);
R2 AND APPEALLANT ARE LRS OF R1(a)]
THIS R.F.A. IS FILED UNDER SECTION 96 R/W O XLI OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 20.9.2008
PASSED IN OS.NO.472/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND JMFC, DEVANAHALLI, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION AND ETC.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.10.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
This Regular First Appeal is filed challenging the judgment and decree dated 20.09.2008 at Annexure-A and A1 passed in O.S.No.472/2006 by the Civil Judge (Sr. Dn.) and JMFC, Devanahalli.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respective respondents.
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3. The factual matrix of the case of the plaintiff/appellant before the Trial Court that he is the propounder of registered last Will and testament dated 27.03.1993 which is marked as Ex.P8 executed by his paternal grandfather Doddahanumappa. The executant passed away on 14.02.1994. Based on the said Will, mutation and RTC came to be transferred by the revenue authorities into the name of the propounder in the year 1995-96. When the respondents confronted with the right and title of the appellant over the suit schedule property in the year 2004, he was forced to file a suit in O.S.No.85/2004 against the respondents before the Principal Civil Judge (Sr. Dn.), Bangalore Rural District, Bangalore for the relief of declaration and perpetual injunction in respect of suit schedule property. It is his case that the suit schedule property was the self acquired property of the testator for having acquired through grant by the State Government on 04.07.1960 by issuance of Saguvali Chit at Ex.P2. The original grantee that is executant was in possession of the property and entire revenue records are standing in his name. The testator at his old age was deserted by his sons i.e., respondent No.1 and his elder 7 brother Munikempaiah and the appellant was looked after by him working in a private concern till his death. The appellant is the eldest son of respondent No.1 and eldest grandson of the testator and Will was executed out of love and affection as he has taken care of the testator. It is contended that when the eldest son of the testator namely Munikempaiah and his three sons had questioned him about his right and title over the suit schedule property on the basis of Ex.P8, a similar suit in O.S.No.727/1995 was filed by the appellant earlier and the same came to be decreed through the judgment and decree dated 11.09.1997 in terms of Ex.P23 and P24 and it has reached its finality. It is also contention of the appellant that respondent No.1 is his father and respondent No.2 is his younger brother. Respondent Nos.3 and 4 are his step-brothers.
4. The respondents, on service of notice and summons, appeared through their counsel and filed their written statement denying the plaint averments. They disputed the authenticity and genuineness of the registered Will but they did not set up any specific defence or counter claim.
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5. It is the contention of the appellant before this Court that the Trial Court taking into note of the pleadings and written statement, framed six Issues and allowed the parties to examine the witnesses and documents were also marked on both sides but without considering the material available on record in a proper perspective, dismissed the suit. Hence, the present appeal is filed before this Court.
6. The main contention of the learned counsel appearing for the appellant in this appeal is that there is no dispute with regard to the relationship between the parties. It is also not in dispute that the suit schedule property was allotted in favour of the testator by the Government. It is the contention of the appellant that respondent Nos.3 and 4 are his step-brothers being the sons of respondent No.1 through Nanjamma. The legally wedded wife of respondent No.1 is Gowramma that is the mother of the appellant and she is still alive. It is further contended that inspite of cogent evidence is placed before the Trial Court, the Trial Court committed an error in coming to the conclusion that Ex.P8-Will has not been proved and the same is 9 surrounded with suspicious circumstances. The testator has bequeathed the suit schedule property in favour of the appellant out of love and affection being his eldest grandson through respondent No.1 who looked after him at his old age. It is also contended that Ex.P8 is not against the provisions of Sections 67 and 68 of the Indian Evidence Act, 1872 and Sections 59 and 63 of the Indian Succession Act, 1925. The respondents have not disputed the left hand thumb impression of the testator at Ex.P8 so as to take recourse to Sections 45 and 47 of the Indian Evidence Act, 1872. The evidence adduced by the appellant does not create any suspicious circumstances regarding the execution of Ex.P8 by the testator. The respondents through their evidence have not made out that Ex.P8 came into existence under undue influence or fraud or threat or coercion.
7. It is also the contention that PW2 is the widow of one of the attesting witnesses who has identified her husband's signature in Ex.P8. PW3 is the advocate who prepared Ex.P8 on the instructions of the testator and has identified the left hand thumb impressions of the testator in Ex.P8. Ex.P8 has not been 10 challenged by any of the children or grandchildren of the testator. No one has claimed any share or partition in the suit schedule property till now. Through Ex.P23 and P24 (judgment and decree of the earlier suit), the Trial Court has declared that Ex.P8 is proved and the same become final and conclusive. But Trial Court in the present suit has erred in coming to the conclusion that Ex.P8 is not proved. The suit was filed against only the persons who troubled the appellant and the appellant has not chosen to make the other children and grandchildren of the testator as parties to the suit as they have not troubled the appellant. It is further contended that the Trial Court committed an error in holding that the other children and grandchildren of the testator are not made as parties to the suit. The Trial Court has unnecessarily ventured to decide the marital status of Nanjamma and there was no dispute that defendant No.1 was having two wives. PW2 is the wife of one of the attesting witnesses Krishnappa. The very approach of the Trial Court is erroneous in coming to the conclusion that Will has not been proved.
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8. The learned counsel also in his arguments would vehemently contend that apart from execution of the Will at Ex.P8, even an affidavit was also executed by the executant which was marked as Ex.P9. The suit was filed against his father and other brother and step-brothers and when the suit was filed for the relief of declaration and not for partition, no need to make the other sons of executant and grandchildren as parties to the suit. The decision regarding marital status of mother and step-mother was not required in a case where the relief of declaration is claimed. The very approach of the Trial Court that Ex.P8 is suspicious is not correct when the same was already decided. The counsel also submits that other suits were filed in the year 2015, 2018 and 2023 and the same were pending for adjudication before the Trial Court and hence, this matter also may be remanded to the Trial Court to consider along with other suits. Thus, the Trial Court committed an error in dismissing the suit and the same requires interference.
9. Per contra, the learned counsel appearing for respondent Nos.1 to 4 would vehemently contend that in the 12 earlier suit, the attesting witnesses have not been examined and the Trial Court has also observed the same. The Trial Court also appreciating both oral and documentary evidence placed on record and comes to the conclusion that Will is surrounded with suspicious circumstances. The counsel also would vehemently contend that the Trial Court in detail discussed with regard to the fact that the suit schedule property was a granted land and also discussed with regard to the relationship between the parties and comes to the conclusion that there is no dispute with regard to the relationship between the parties. The Trial Court also taken note of each and every material available on record meticulously and comes to the conclusion that Will has not been proved and the same is surrounded with suspicious circumstances and hence, it does not requires any interference.
10. The counsel in support of his arguments relied upon the judgment of the Apex Court in the case of K LAXMANAN vs THEKKAYIL PADMINI AND OTHERS reported in (2009) 1 SCC 354 and brought to notice of this Court the discussions made in the judgment with regard to the onus to prove and 13 manner of proving the Will and burden lies on the propounder and held that the propounder should prove the legality of execution and genuineness of the will by explaining the suspicious circumstances, if any, surrounding the will and also by proving the testamentary capacity and the signature of testator. Even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the Court by removing such doubt. The counsel referring this judgment would contend that suspicious has not been removed by the propounder and hence, the Trial Court rightly dismissed the suit. The counsel also would vehemently contend that the contention of the plaintiff/appellant that he has taken care of the testator and in order to prove the said fact, nothing is placed on record by the appellant.
11. The counsel also relied upon the judgment of the Apex Court in the case of YUMNAM ONGBI TAMPHA IBEMA DEVI vs YUMNAM JOYKUMAR SINGH AND OTHERS reported in (2009)4 SCC 780 and contended that in this judgment also the Apex Court discussed the scope of Section 63 of the 14 Succession Act, 1925 with regard to the requirements of a valid will, mode of proving a will and attestation of a will wherein the Apex Court held it is not a mere formality to be valid, a will should be attested by two or more witnesses and propounder should examine one attesting witness to prove the will. Attesting witness should speak not only about testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in presence of testator. The counsel also brought to notice of this Court paragraph 11 of the said judgment wherein discussion was made with regard to the provisions of Section 63 of the Succession Act, for the due execution of a will and so also the counsel brought to notice of this Court the discussion made in detail by the Apex Court regarding proving of a will. The counsel relying upon this judgment would vehemently contend that Ex.P8 has not been proved and the Trial Court has rightly dismissed the suit.
12. The learned counsel appearing for respondent Nos.5 to 7 would vehemently contend that the testator is the resident of Marasandra village but his address in the Will is shown as 15 Bengaluru and no document is placed before the Court to show that the testator was resident at Bengaluru. The counsel would vehemently contend that none of the attesting witnesses have been examined before the Trial Court and though examined PW2, she is not the attesting witness but she is the wife of one of the attesting witness. It is also contended that PW3 is the advocate and scribe of Ex.P8 and he deposed that testator came on the same day but the document reveals that the stamp paper is nine months old. The counsel also would vehemently contend that stamp paper used for preparing the Will is of nine months old and the Trial Court in detail discussed with regard to the using of stamp paper. The counsel also would vehemently contend that one grandson disinheriting the other sons and grandchildren of the testator, no recital in the Will with regard to making a Will in favour of the beneficiary. The LTM also not proved independently by examining the attesting witnesses. The counsel also would vehemently contend that no compliance of Sections 68 of the Evidence Act and 63 of the Succession Act and not examined other attesting witness except the wife of one of the attesting witnesses - Krishnappa. It is also contended 16 that the plaintiff residing along with his wife at Elagunte village and distance from Elagunte to Marasandra is 15 k.m., and the testator was residing at Marasandra. Hence, it is clear that the propounder was not residing along with the testator. The counsel also would vehemently contend that one of the attesting witnesses is the plaintiff's wife's elder brother. All these factors are taken note of by the Trial Court while dismissing the suit.
13. In reply to the arguments, the learned counsel appearing for the appellant would vehemently contend that no bar to take the signature of the relatives and also the counsel would vehemently contend that Will need not be in any manner and even registration also not required and the finding of the Trial Court is against the material available on record. Hence, it requires interference.
14. Having heard the learned counsel appearing for the respective parties and also considering the material available on record and also considering the principles laid down in the judgments referred supra, the points that would arise for the consideration of this Court are:
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1. Whether the Trial Court committed an error in coming to the conclusion that Ex.P8-Will came into existence under suspicious circumstances?
2. Whether the Trial Court committed an error in appreciating both oral and documentary evidence placed on record and whether it requires interference of this Court by exercising the appellate jurisdiction?
3. What order?
Points Nos.1 and 2
15. Having heard the learned counsel appearing for the respective parties as well as considering the pleading and material available on record, it discloses that it is not in dispute that the suit was filed for the relief of declaration declaring that the plaintiff is the lawful owner and in peaceful possession and enjoyment of the suit schedule property and for the consequential relief of permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit schedule property.
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16. It is not in dispute that the suit schedule property situated at Sy.No.54 of Marasandra village measuring 7 acres 1 gunta. It is also not in dispute that the said property was a self- acquired property of Dodda Hanumappa. The Dodda Hanumappa got the suit schedule property by the Government through Saguvali Chit dated 04.07.1960 at Ex.P2. It is the contention of the defendants that the suit schedule property was granted in favour of Dodda Hanumappa and the same is his self- acquired property and also admitted the relationship between the parties but totally denied the execution of the Will dated 27.03.1993.
17. The Trial Court after considering the pleadings of the parties, framed the following Issues:
1. Whether the plaintiff proves that Dodda Hanumappa has bequeathed the suit schedule property in his favour through the registered Will dated 27.03.1993?
2. Whether the plaintiff proves his lawful possession of the suit schedule property on the date of filing the suit?
3. Whether the plaintiff proves the alleged interference by the defendants? 19
4. Whether the plaintiff proves his title to the suit schedule property?
5. Whether the plaintiff is entitled for permanent injunction, as prayed for?
6. To what order or decree?
18. It is also important to note that the crux of the issue before this Court that on re-appreciation of both oral and documentary evidence placed on record, this Court has to examine whether the Will was valid or whether the same is surrounded with suspicious circumstances. It is also not in dispute that the plaintiff himself examined as PW1 and also it is emerged during the course of the evidence that he was also present at the time of execution of the Will as admitted by him in his evidence. It is also important to note that the principles laid down in the judgments referred supra by the counsel for respondent Nos.1 to 4 is also settled position of law that one of the attesting witnesses must be examined before the Trial Court in order to prove the Will and also attesting witnesses should speak not only about the testator's signature or affixing his mark to the Will but also that the each of the witnesses had signed the 20 Will in the presence of testator. It is also settled law that if there is any suspicious circumstances, the propounder of the Will should remove the same.
19. In keeping the principles laid down in the judgments as well as it is settled law that the Court has to re-examine the factual aspect as well as question of law as the present appeal is a regular first appeal and the same is a statutory appeal. No doubt, the Trial Court in detail discussed with regard to the nature of the land and no dispute that the suit schedule property was the self-acquired property of the executant. It is also not in dispute that earlier also the plaintiff/appellant had filed suit and the same was decreed in terms of Ex.P23 and P24. The fact in this case is that the attesting witnesses were not examined in the said suit is also not in dispute. Hence, with regard to the proving of Will is concerned, Ex.P23 and P24 will not come to the aid of the plaintiff/appellant.
20. Now this Court has to examine whether there is compliance of Section 63 and 68 of the respective Acts in proving the Will. I have already pointed out that PW1 21 categorically admitted that he was very much present while executing the Will. It is also not in dispute that the land was granted in the year 1960 in favour of Dodda Hanumappa and he was having sons namely, Munikempaiah and also father of the appellant that is Venkataramanappa. It is also not in dispute that the said DW1 who is the father of the appellant had two wives and defendant Nos.3 and 4 are step-brothers of the appellant through Nanjamma and though same is disputed but not seriously disputed before the Court. It has to be noted that according to the plaintiff, Will was executed and the same was registered. It is important to note that one of the attesting witnesses who passed away and his wife was examined as PW2 and she came and identified her husband's signature but not produced any document of her husband before the Trial Court to show that her husband used to sign similarly and also plaintiff has not taken any steps to examine any of the attesting witnesses in proving the Will before the Trial Court. The plaintiff ought to have examined other attesting witness who is alive and he would be competent witness to come and speak with regard 22 to the very execution of the Will, but the same has not been done.
21. It is also important to note that PW2 cannot speak with regard to the fact that testator and her husband had signed the document in the presence of testator. The material witness would be the other attesting witness and instead of relying upon the evidence of PW2, the plaintiff ought to have been examined other attesting witness, then there would be a compliance of Section 63 and 68 of the respective Acts and statutory requirements for due execution of Will ought to have been proved, but, same has not been done in compliance of Section 68 of the Indian Evidence Act by examining at lease one of the attesting witness and also attestation itself has to be proved in the form of Section 63(c) of the Succession Act which requires. The Trial Court also taken note of the said fact into consideration in paragraph 56 of its judgment and also discussed with regard to the evidence of PW2 in paragraph 55 and it has rightly comes to the conclusion that the evidence of PW2 is only a hearsay evidence and the same does not prove the execution of the Will. 23 No doubt, examination of PW2 is in compliance of Section 69 of the Evidence Act but when the other attesting witness is alive, ought to have been examined to comply the same, but, same has not been done.
22. It is also important to note that the Trial Court also taken note of the date of the stamp paper which was used for preparing the Will at Ex.P8 and also the evidence of PW3 i.e., the scribe who is also an advocate and he deposes before the Court that testator had approached him on 27.03.1993 but the stamp paper reveals that the treasury seal is dated 19.06.1992, whereas the said stamp paper sold as per the seal mentioned by the stamp vendor on 27.03.1993. Hence, the date of release of stamp paper and the date of using of stamp paper is more than six months from the date of execution of the Will. The Trial Court also taken note of the fact that at Ex.P8, in pages 1 and 3, it is mentioned that it was issued in the name of Dodda Hanumappa by the stamp vendor but in the page 2, it is mentioned that the same was issued in the name of Syed Ahamed, hence, there is a doubt with regard to genuineness of 24 the execution of the alleged Will by the deceased testator in favour of the plaintiff. The Trial Court also taken note of the fact that Sub-Registrar, on the back side of the document, mentioned the date of 26.06.1993 but it is not the case of the plaintiff that on 26.06.1993, he was present before the Sub-Registrar for registration of the Will.
23. It has to be noted that PW3 who prepared the Will speaks that the testator approached him on particular date i.e., on the date of registration of the Will and not earlier to the said date. All these factors are also taken note of by the Trial Court in paragraph 57 of its judgment. In paragraph 58, the Trial Court considered the evidence of PW3 wherein he categorically says that on 27.03.1993 at 10.30 a.m., when he was in the Bar Association, Bangalore, the executant approached him through one Krishnappa. His evidence is also clear that deceased testator affixed his LTM and also directed the attesting witnesses to put their signature. But his chief-examination itself contradicts the ingredients as mentioned in Section 63 of the Succession Act and he has not whispered whether the plaintiff was present at the 25 time of registration of the Will or not since PW1 categorically admitted that he was accompanied with the deceased testator at the time of execution of Ex.P8. PW3 also says that on the instructions and direction of the executant, he prepared Ex.P9- Affidavit on 05.04.1993. Hence, the Trial Court rightly comes to the conclusion that when the registered Will was executed, there was no need of any affidavit subsequent to the date of the execution of the Will and the same is also observed in paragraph 59 of the judgment of the Trial Court.
24. The Trial Court in detail discussed the material available on record and considered both oral and documentary evidence placed on record and also taken note of the evidence of witnesses particularly, PW1 to PW3 and so also the contention of the defendants. The Trial Court particularly considering the document at Ex.P8 under which the plaintiff claims the right taken note of the fact that the said document came into existence in a suspicious circumstances and also it has to be noted that the executant having two sons and also the grandsons and why he has executed the Will only in favour of 26 one of the grandson, no reasons are assigned in disinheriting the sons and grandsons of the executant and hence, there is a force in the contention of the respondent counsel also that no reasons are assigned while executing the Will only in favour of the appellant. It is also settled law that while dispossessing the property, the reason has to be given stating that for what special reason, he was bequeathing the property only in favour of one of the grandson excluding the other legal heirs and also grandchildren. No such recital is found in Ex.P8. This Court already taken note of the fact that Ex.P9 came into existence in a suspicious circumstances and when the document at Ex.P8 was registered, there is no need of execution of Ex.P9 and there is no any warranting circumstances to execute the same when the attesting witnesses have also not spoken about the same and this Court already pointed out that other attesting witness has not been examined before the Court and only relies upon the evidence of PW2 who is not the attesting witness and not present at the time of execution of the document. 27
25. It is also important to note that the beneficiary has played his role in getting the document and categorically admits that he was very much present at the time of execution of the document i.e., Will and the same is other suspicious circumstances. The Trial Court also taken note of the fact that the document which have been placed before the Trial Court particularly, stamp paper which has been used for execution of the Will is also found discrepancies like, the document was purchased in the year 1992 itself and made use of the same in the year 1993 and detail discussion was made by the Trial Court in this regard and the Trial Court also meticulously examined the material available on record. Hence, I do not find any force in the contention of the appellant that the Trial Court has committed an error in dismissing the suit.
26. The counsel for the appellant would contend that other three suits have been filed in the year 2015, 2018 and 2023 and this matter may be remanded to the Trial Court to consider along with the other suits, but the question of remand of this matter does not arise when the suit is filed for the relief 28 of declaration and permanent injunction that too claiming the right based on Ex.P8 which is executed under suspicious circumstances and though examined two witnesses, their evidence is not sufficient and Ex.P8 came under suspicious circumstances excluding other family members and suspicious circumstances has not been removed by the propounder of the Will. Thus, no error committed by the Trial Court in appreciating both oral and documentary evidence placed on record and hence, I answer point Nos.1 and 2 as 'negative'. Point No.3:
27. In view of the discussions made above, I pass the following:
ORDER The Regular First Appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE SN