Karnataka High Court
Sri Manohar S/O Shankar Sambrekar vs Smt Laxmi W/O Gajanan Sambrekar on 24 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR FIRST APPEAL No.218/2006 (PAR)
BETWEEN
SRI MANOHAR S/O SHANKAR SAMBREKAR
AGED ABOUT 57 YEARS,
OCC PRIVATE SERVICE,
R/O HOUSE NO 741/13-A, VIDHYA NAGAR,
ANGOL, BELGAUM-590001.
... APPELLANT
(By SRI MURUGENDRA TUBAKE, ADV. FOR SRI JAGADISH
PATIL, ADV.)
AND
1. SMT LAXMI W/O GAJANAN SAMBREKAR
AGED ABOUT 47 YEARS,
OCC HOUSEHOLD WORK,
R/O C/O M R PASALKAR,
DR RADHAKRISHNA ROAD,
2 CROSS, HINDWADI,
BELGAUM-590001.
2. SURESH
S/O SHANKAR SAMBREKAR
AGED ABOUT 37 YRS
2
OCC PVT SERVICE
R/O KARBAR GALLI, VADAGAON
BELGAUM-590001.
3. DASHARATH
S/O SHANKAR SAMBREKAR,
AGED ABOUT 40 YEARS, OCC PVT SERVICE,
R/O YAMANAPUR,
TQ. & DIST. BELGAUM-590001.
4. MANJULA @ PARAVATHI
W/O MUSHAPPA BADIGER,
(SINCE DEAD BY HER LR'S)
4A) MUSHAPPA KARIYAPPA BADIGER
AGE: 75 YEARS, OCC: CARPENTER,
4B) MARUTI MUSHAPPA BADIGER
AGE: 45 YEARS, OCC: CARPENTER,
4C) ASHOK MUSHAPPA BADIGER
AGE: 42 YEARS, OCC: CARPENTER,
4D) NARAYAN MUSHAPPA BADIGER
AGE: 35 YEARS, OCC: PVT. WORK,
4E) KOMAL SHANKAR LOHAR
AGE: 40 YEARS, OCC: HOUSEHOLD,
4F) BALAWWA MUSHAPPA BADIGER
AGE: 30 YEARS, OCC: HOUSEHOLD,
ALL R/O BENCHAMARDI,
TQ. GOKAK, DIST: BELGAUM.
5. MOHAN
S/O GAJANAN SAMBREKAR
3
AGED ABOUT 32 YEARS,
OCC PVT SERVICE,
R/O HINDWADI, BELGAUM.
6. HANAMANT
S/O GAJANAN SAMBREKAR
AGED ABOUT 28 YEARS,
OCC PVT SERVICE,
7. MISS MANGAL
D/O GAJANAN SAMBREKAR
AGED ABOUT 23 YEARS,
OCC PVT SERVICE,
8. MISS SUMAN
D/O GAJANAN SAMBREKAR
AGED ABOUT 20 YEARS,
OCC PVT SERVICE,
9. DAMODHAR GOPAL PANARI,
AGE: YRS., OCC: PVT.SERVICE,
10. GURUDAS VASUDEV SUTAR,
AGE: YRS., OCC: PVT.SERVICE,
ALL ARE RESIDENTS DR. M.R.PUSALKAR,
DR. RADHAKRISHNA MARG, II CROSS,
HINDAWADI, BELGAUM.
... RESPONDENTS
(By Sri. SANTHOSH.S.NAGARALE, ADV. FOR R1,
SRI. SRINAND A.PACHHAPURE, ADV. FOR R2, R3, R5-
8.)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.24.12.2005 PASSED IN
O.S.NO.68/2003 ON THE FILE OF THE III ADDL. CIVIL
4
JUDGE (SR.DN), BELGAUM, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING FOR PRONOUNCEMENT OF
JUDGMENT ON THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
The first defendant of an original suit bearing O.S.No.68/2003 which was pending on the file of the Court of III Addl. Senior Civil Judge, Belgaum, has approached this Court by way of an appeal under Section 96 of CPC challenging the judgment and decree passed against him in on 24.12.2005.
2. Respondents 1 to 8 herein were plaintiffs in the said suit and respondents 9 and 10 were defendants 2 and 3 in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.
3. Suit schedule property is an urban property carved out of resurvey No.48/3A/1 and a two-storied house is built thereon. The said property bears property No.741/13/A and 5 is situated in Vidhya Nagar, Angol-Belgaum City. Plaintiffs had filed a suit for reliefs of partition and separate possession seeking in all 4/5th share in the said suit schedule property. The said suit has been decreed as prayed for. Being aggrieved by the said judgment and decree passed by the learned III Addl. Senior (Civil Judge), Belgaum, the first defendant has challenged the same on various grounds as set out in the appeal memo.
4. The area in which the house property exists was purchased by the father of the appellant and father-in-law of first plaintiff Laxmibai and father of plaintiffs 2 to 4. Shankar father of the appellant purchased the said site in 1960 out of his own earnings and later on put up a house thereon in the year 1972 spending his own money.
5. According to the plaintiffs, the first defendant is laying a claim to the suit schedule property on the basis of a Will stated to have been executed in his favour by his father in the year 1991 and the said Will so relied upon by him is a 6 suspicious document and that appellant's father had never executed any Will in his favour. According to them, after the death of Shankar all of them have succeeded to his estate and thereby they have 1/5th share each. The appellant has a sister by name Manjula who is the fourth plaintiff. First son Gajanand-the husband of first plaintiff Laxmi and father of plaintiffs 5 to 8 is no more. Second son Manohar is defendant No.1. Third plaintiff Dasharath is his third son. Plaintiff No.2 Suresh is the last son. According to the plaintiffs, they are in joint possession with the first defendant and that they are entitled for 1/4th share each and thus entitled for 4/5th share together.
6. Suit came to be resisted by filing a detailed written statement. The factum of joint family as averred by the plaintiffs has been specifically denied. The averment that deceased Shankar was suffering from paralysis for about 30 years prior to his death and therefore he was physically and mentally unfit has also been specifically denied. The suit is 7 stated to be not maintainable without seeking a declaration to the effect that the Will dated 19.01.1991 is null and void. The averment that plaintiffs had also contributed substantially towards the purchase of the property and for construction of the building has been specifically denied. According to the first defendant, his father Shankar has bequeathed the entire suit schedule property in his favour through a registered Will dated 19.01.1991 when he was in a sound disposing state of mind and as such he has become the absolute owner. He had prayed for dismissal of the suit. Later on the suit was got dismissed against defendants 2 and 3.
7. Second plaintiff has been examined as PW1 and first plaintiff has been examined as PW2, apart from getting 20 documents marked as exhibits on their behalf. First defendant himself has been examined as DW1 and Sitaram Yallappa Goundawadkar, who is stated to be the attestor to the said Will relied upon by first defendant has been 8 examined as DW2. Krishnaji Srinivas Patil, who is stated to be the scribe of the said Will is examined as DW3.
8. On the basis of the pleadings of the parties, following issues had been framed on 22.09.2005:
1. Whether the plaintiffs prove that suit property is the joint family property?
2. Whether the plaintiffs prove that themselves and defendant no.1 are the joint family members and there is no partition in the suit property?
3. Whether the plaintiffs prove that defendant no.1 is collecting the rent every month from defendant no.2 and 3?
4. Whether the plaintiff No.2 proves that deceased Shankar executed independent Will deed in the year 1987 in his favour?
5. Whether the plaintiffs prove that defendant no.1 has created false and concocted will deed dated 19.01.1991?9
6. Whether the defendant no.1 proves that deceased Shankar executed his last will in his favour on 19.1.1991 under his free will and consent?
7. Whether the plaintiffs are entitle for 4/5th share in the suit property?
8. Whether the plaintiffs are entitle for decree sought for?
9. What order/decree?
9. After hearing the arguments, the learned Senior Civil Judge has answered issues 1 to 3, 5, 7 and 8 in the affirmative and issue Nos.4 and 6 in the negative. Ultimately suit has been decreed as prayed for. It is this judgment and decree which is called in question before this Court under Section 96 of CPC.
10. Several grounds have been urged in the appeal memo challenging the said judgment and decree. It is contended that the trial Court has not properly analysed oral 10 and documentary evidence in right perspective and that it has adopted a hypertechnical approach towards the evaluation of evidence. It is further contended that first defendant being the propounder of the Will has been able to ward off all the suspicious circumstances surrounding the Will and that there were cogent reasons for the testator to bequeath the schedule property in his favour only. It is contended that the first defendant was looking after the testator and was providing all medical facilities and that the plaintiffs had virtually neglected him. It is further contended that though the testator was little paralytic, he was in sound disposing state of mind to execute the Will and that the testator had executed the Will knowing all the consequences. The Trial Court is stated to have not tested the oral and documentary evidence on the touchstone of intrinsic probabilities and that minor inconsistencies found here and there have been blown out of proportion to disbelieve the case of the first defendant. The trial Court is stated to have adopted a wrong approach to the real state of affairs. The judgment and decree of the trial 11 Court is stated to be opposed to law, facts and probabilities. Hence it is prayed to allow the appeal and thereby dismiss the suit with costs.
11. Thus Learned Counsel for the appellants has vehemently argued supporting the grounds taken up in the appeal. Per contra, the learned Counsel for the respondents has also vehemently argued supporting the impugned judgment mainly relying upon the principles enunciated by the Hon'ble Apex Court in the case of H.Venkatachala Iyengar Vs. B.N.Thimmajamma reported in AIR 1959 SC
443. According to the learned Counsel for the plaintiffs the testator was not in a sound disposing state of mind and that the so-called Will is a concocted document. According to the learned Counsel for the plaintiffs, there are serious inconsistencies which are writ large on the face of the record and thereby suspicious circumstances surrounding the Will have not been warded off. After hearing the arguments from the learned Counsel appearing for the parties and after 12 having perused the records, following points arise for our consideration:
1. Whether the trial Court is justified in holding that Ex.D1 the Will relied upon by defendant No.1 has been surrounded with suspicious circumstances and that the same have not been warded off by the propounder i.e., defendant No.1?
2. Whether any interference is called for by this Court and if so, to what extent?
Re. Point No.1:
12. Admittedly, the deceased Shankar has four sons and one daughter. His son Gajanand is no more and first plaintiff is his wife. Plaintiffs 5 to 8 are his children.
Plaintiffs 2 and 3 are other two sons and first defendant is the second son. Plaintiff No.4 Manjula is the only daughter of deceased Shankar.
13. PW1 himself has admitted in his evidence that the site over which the deceased put up a house was purchased 13 by deceased Shankar in the year 1960 and Shankar purchased the said site out of his own funds. He has further admitted in his cross-examination that the deceased Shankar constructed a house thereon out of his own earnings. Admissions culled out from the mouth of PW1 are found in paragraph-29 at page No.9 of his deposition and they are reproduced below:
"1960 £Éà E¹éAiÀÄ°è £ÀªÀÄä vÀAzÉ zÁªÁ D¹ÛAiÀÄ RįÁè eÁUÉAiÀÄ£ÀÄß £ÀªÀÄä vÀAzÉAiÀÄ ¸ÀéAvÀ ºÀt¢AzÀ Rjâ ªÀiÁrzÀÝgÀÄ CAzÀgÉ ¸Àj. ªÀÄÄAzÉ 1972 gÀ°è vÀªÀÄä ¸ÀéAvÀ ºÀt RZÀÄð ªÀiÁr ªÀÄ£É PÀnÖzÀÝgÀÄ CAzÀgÉ ¸Àj."
14. Admittedly all the four sons and daughter of deceased were quite young when the site was purchased and house was built thereon by the deceased. Therefore it was for all practical purposes the self-acquired property of deceased Shankar. Defendant No.1 has relied upon Ex.D1 the Will stated to have been executed in his favour by his father Shankar on 19.01.1991. It is a Will registered before the Sub-Registrar, Belgaum. One G.K.Sutar and Sitaram Yallappa Goundawadkar are stated to be the attestors to the 14 said Will. There is an endorsement that somebody had identified the executor before the Sub-Registrar. The name of the person identifying the executor is not legible.
15. Section 68 of Indian Evidence Act coupled with Section 63 of Indian Succession Act mandate that the Will must necessarily be attested by two witnesses and when its authenticity is called in question, atleast one of the attestors must be examined to vouchsafe the genuineness of the Will. Section 63 of Indian Evidence Act lays down the procedure for examination of attestor to the Will. As already discussed, plaintiffs have specifically disputed the Will relied upon by the first defendant. Admittedly Shankar died on 12.09.1991. In paragraph-17 of the plaint there is a specific averment about the Will came to be registered on 19.01.1991 though it was executed on 23.12.1990. It is clearly alleged in para-17 that defendant No.1 has created a false concocted Will dated 19.01.1991 and the same has to be considered as null and void and not enforceable. In the light of such a serious challenge made to Ex.D1, it is the duty of the propounder to 15 prove the said Will to the satisfaction of the Court before which it was placed.
16. In order to prove the Will, first defendant himself has been examined as DW1 and he has examined Mr.Sitaram Yallappa Goundwadkar in support of the proof of the Will. According to him, Sitaram is an attestor to the said Will. DW3 Krishnaji Srinivas Patil, is stated to be the scribe of the said Will. Examination of a scribe in support of a proof of Will is not equivalent to the examination of an attestor of a Will. Therefore, the examination of one of the attestors is mandate to prove the Will.
17. First defendant has been examined as DW1 and has reiterated the contents of his written statement in the affidavit filed in lieu of examination in chief. He has been cross-examined at length by the learned Counsel appearing for the plaintiffs. He has admitted that the Will registered on 19.01.1991 was not pressed into service by him at any point of time either by filing a petition seeking propounder or before 16 any other judicial authority. He has admitted in his cross- examination as found in page No.8 that his father had a paralytic attack in 1976.
18. To a suggestion put to him as a result of paralysis, Shankar was not able to move about and talk freely has been specifically denied. Suggestion put to him that his father was not in a fit mental condition because of paralysis has also been specifically denied. Ex.D1 the Will relied upon by DW1 bears an endorsement of one Doctor by name Dr.C.H.Ranade.
19. The endorsement so made by Dr.C.H.Ranade, is as follows:
Dr.C.H.Ranade, Senior Physician, Angol,
Belgaum
23.12.1990
I have examined Sri Shankar A.Sambrekar, on 23.12.1990. He is mentally sound and alert. He is suffering from bronchitis and hemiplegic and he is well oriented to time and place.
Sd/-
Ranade 23.12.1990 17
20. DW1 himself has admitted in his evidence that his father became paralytic in 1976. It is not the case of the defendant No.1 that his father's health improved and the severity of the paralysis had come down. The fact that he was paralytic till his death right from 1976 is not seriously disputed by the witnesses examined on behalf plaintiffs and DWs.1 and 2. The said Dr.Ranade, has not been examined before the trial Court in support of the physical and mental health of the deceased Shankar Sambrekar, though he is stated to have examined his health.
21. What is deposed by D.W.1 is that on 19.01.1991, his father Shankar was in a fit condition to bequeath the property and the Will is duly attested by attesting witnesses and all the procedures in connection with the execution and registration of the Will have been complied with. He has deposed in his examination-in-chief that on 19.01.1991 his father Sambrekar executed and registered Will in his favour and that he was in a fit condition to bequeath the property. It 18 is his case that doctor has endorsed that he was mentally sound to execute the will. Even in his examination-in-chief D.W.1 has averred that on 19.01.1991 his father Shankar executed a will in his favour out of free will. But the document marked as Ex.D1 speaks otherwise. It was written on 23.12.1990, but presented to registration on 19.01.1991. It is surprising to note that D.W.1 being the propounder of the will has not whispered anything about the Will being executed by his father on 23.12.1990.
22. DW2 Mr.Sitaram Yallappa Goundawadkar, is stated to be an attestor. He is residing in the vicinity of the house of the defendants. According to him, Shankar had sent words to him to come to his house as he had intended to execute a Will in favour of his son Manohar. Therefore, himself G.K.Sutar, another attesting witness and Shankar went to the office of the scribe Sri.K.S.Patil, examined as DW3 and there, Shankar, dictated to the scribe to draft a Will and accordingly DW3 K.S.Patil, drafted the Will. He has deposed that scribe put his signature and thereafter deceased Shankar put his 19 signature on the Will in their presence and later on G.K.Sutar attested the said document and thereafter he i.e., PW2 subscribed his signature. His signature is marked as Ex.D1(a). He has identified the signature of another attesting witness G.K.Sutar as Ex.D1(c). When Shankar was paralytic, it is understandable as to how he could give instructions to the scribe.
23. Of course, the said Sutar has not been examined before the Court. Per contra, Sutar himself has filed an affidavit in support of the case of the plaintiffs. In his affidavit G.K.Sutar has specifically sworn on oath that he came to know that on 23.12.1990, Manohar, obtained his signature on blank paper and reduced the same into a Will and this aspect came to his knowledge recently. According to Sutar, he had not put his signature before any authority or in the presence of anybody and it is a concocted document. Hence, much credence cannot attached to this Ex.P20, the affidavit of Sutar as he is not been tendered for cross- 20 examination. Anyhow, non-examination of Sutar will give rise to some suspicion. In the light of this affidavit marked as Ex.P20, Sitarm examined as PW2 has not stated anything about the presence of Dr.Ranade, either at the time of writing the will or at the time of presenting the same before the Sub- Registrar. If really Dr.Ranade, was present at the time of executing the Will, PW2 would have definitely made a mention of it in his evidence. Normally such endorsements would not be found in any registered document. If really Dr.Ranade, had made such an endorsement on the date of execution, it would have found a place in Book No.3 maintained for writing the registration of Wills.
24. The signature of attestor is marked as Ex.D1(b) at the instance of PW2 the attestor. He has also admitted that Shankar was suffering from paralysis; but he has volunteered to state that he was quite healthy and did not have any asthma complaint. His deposition is falsified by the socalled endorsement made by Dr.Ranade, which indicates that the 21 deceased was suffering from bronchitis which is a mild form of asthma.
25. In his cross-examination DW2 has deposed that on 23.12.1990, in all there were four persons in the house of deceased Shankar and he has not been able to give the names of those persons except the stamp vendor and himself. At one breath, he states that Shankar had sent words to him to come to his house as he had intended to execute a Will in favour of his son Manohar, whereas in his examination-in- chief DW2 has deposed that himself Shankar and Sutar went to the office of scribe K.S.Patil, now examined as DW3. This is a serious inconsistency. In his further cross-examination, as found in page No.5, DW2 has deposed that Shankar himself had come to his house expressing his intention to execute a Will. But the same is not found in his examination- in-chief. On the other hand, in his examination in chief he has deposed that he had sent words to him. Hence, DW2 has admitted that in the affidavit filed in lieu of examination-in- chief that there is no mention to the effect that Shankar had 22 come to his house at about 11.00 a.m. on that day. He has admitted that the ink used for writing the Will is different from the ink and pen used for putting their signatures and the signature of Sutar. Ex.D1(b) therefore is stated to be the signature of Shankar, the testator. Admittedly the Will is in two sheets i.e., four pages. Only one signature is found in last page of the Will.
26. DW1 himself has admitted in his cross-examination that Shankar had chosen to cancel the Will dated 02.11.1989. He has further deposed that it was he who identified his father's signature before the Sub-Registrar at the time of admitting the cancellation of the earlier Will. This cancellation Will is marked as Ex.D13. It is in regard to the cancellation of an earlier Will written dated 23.11.1987. In the said Will marked as Ex.D13, signature of Shankar is not found in last line of the Will. On the other hand, it bears the LTM of Shankar. This would go to show that Shankar was not physically fit to subscribe the signature because of paralysis and therefore he had subscribed his LTM unto the 23 deed marked as Ex.D13. Therefore it is highly ununderstandable as to how his signature could find place in Ex.D1 Will stated to have executed on 19.01.1991.
27. As already discussed, Will was written on 19.01.1991 and was presented at about 12 noon on 19.01.1991 before the Sub-Registrar and there is an endorsement made to that effect. It is ununderstandable as to how his health could be certified 26 days prior to the execution of the alleged Will. If the endorsement of Dr.Ranade was on 23.12.1990 speaks about his health condition, Dr.Ranade should have been examined before the Court. Non-examination of Dr.Ranade is a serious infirmity giving raise to an adverse inference under Section 114(g) of Evidence Act. In the light of non-examination of a material witness i.e., Dr.Ranade, it can be said that a serious suspicious circumstance was surrounding the execution of the Will and that has not been warded off. Apart from this PWs.2 and 3 have categorically admitted that Ex.D1 the Will 24 stated to have been executed by Shankar does not contain any details in regard to the property with reference to the identification, the measurements, the facilities available in the house, the boundaries and the extent. Both of them have further admitted that there is no reference about the execution of the earlier Will in 1987 and the cancellation thereof on 02.11.1989 before the Sub-Registrar.
28. As already discussed DW3 Krishnaji Srinivas Patil, who is stated to have written the Will at the instance of Shankar, states that on 23.12.1990 the deceased Shankar Appayya Sambrekar, came along with two attesting witnesses by name Sutar and Sitaram to his office and expressed his intention to execute a Will in favour of his son Manohar and he was physically and mentally fit and he himself dictated to him to write a last Will. According to his instructions, he is stated to have written a Will in Marathi and put his signature. DW3 has identified his signature as Ex.D1(e), but the date of writing the Will is 23.12.1990 and presented to registration 25 on 19.01.1991. Why there was so much of delay in presentation of the said Will for registration is not explained. Admittedly, DW3 Krishnaji Srinivas Patil, did not go before the Registrar at the time of registration of the Will. He has admitted a suggestion put to that effect. He has further admitted that he did not ask the attestor as to why he was excluding other children from the benefit. He has further admitted that signature of Dr.Ranade, is found in two places and that they were not subscribed by Dr.Ranade, when the Will was executed. Admittedly, DW3 has his house in the vicinity of DW2's house and both of them are close to each other. Admittedly, DW3 did not know either the deceased Shankar or the members of his family and even otherwise the scribe of a Will cannot be equated to a attestor to the Will. Hence much credence cannot be attached to the deposition of DW3 the so-called scribe of the Will. Looking to the entire deposition of DW3 as a whole, a lot of suspicion arises in the mind of the Court about the genuineness of the Will and that 26 has been properly analysed by the trial Court in the right perspective.
29. Whenever a property is to be bequeathed by anybody, normally there will be all particulars with reference to the dimension, the nature of the property, and boundaries and they are conspicuously absent in the Will in question and DW2 has specifically admitted to that effect in his cross- examination.
30. Apart from that there is no evidence that the plaintiffs were not being liked by the deceased and that they were at loggerheads. In the Will marked as Ex.D1 there is a reference that he had already performed the marriage of his only daughter and other sons were residing separately. But the evidence of DW1 does not even indicate remotely that there was good cause to exclude them from getting the benefit under the Will. There is no parole evidence by DW1 in regard to the contents of the Will which speak that all other sons 27 except him were not at all looking after the deceased and were negligent.
31. Apart from this, the Will is of the year 1991 i.e., dated 23.12.1990 but presented to the Registrar on 19.01.1991. Admittedly, Shankar died on 12.09.1991 and Gajanand husband of the first plaintiff died on 10.09.1996. This Will, though a registered Will, did not find the light of the day for many years. Apart from that, there were Rent control proceedings being initiated by deceased Shankar and his sons against the tenants of this property in the year 1985 vide HRC No.393/1985. This was disposed of on 15.03.1990 by the then III Addl. Munsiff, Belgaum, as against which a revision petition came to be filed before the District Court at Belgaum and matter was taken up by the tenants to the Hon'ble High Court of Karnataka and it ended in a compromise and alternatively, an execution petition was filed in E.P.No.77/1999 and possession was handed over to the owners. Execution Petition was closed on 18.06.1999. 28
32. If really this Will had been genuine, nothing would have come in the way of Manohar to have pressed the same into service either in the revision petition filed before the District Court or in the case filed by the tenants as against them in the High Court. This is also one strong circumstance which has not been explained in any manner.
33. Similarly Ex.P18 is stated to be a Will executed by deceased Shankar on 10.04.1981 registered on 13.04.1981. This was presented for registration on 10.04.1981 itself. The said Will bears the LTM and not the signature of the deceased. Therefore the signature found in Ex.D1(b) purported to be of Shankar is a doubtful one and that is also a circumstance which has not been warded off. This is also a very serious suspicious circumstances which required proper explanation and that is not forthcoming.
34. Apart from this, DW1 has admitted in his evidence that his father was running a Saw Mill in Tilakawadi and that there was good income from the said Saw Mill. He has 29 further admitted that at the time of death of his father himself and his brother were residing together and others were residing separately. If one of the brothers lived with defendant No.1 Manohar at that time, it is ununderstandable as to how his father could have excluded him from the benefit. There is no material placed on record to show that he was alone looking after his father and others had neglected him. He has not placed any evidence in regard to the medical expenses incurred by him in getting treatment for his father.
35. He has admitted that his father was not in a position to put his full signature because of paralysis. He has given an explanation as to why the signature of his father is found partially in Ex.D1. Signature found in Ex.D1 is identified as Ex.D1(b) by DW2. Sufficient discussion is made as to how the same appears to be a doubtful one. But the doubt that has emanated in the mind of the Court as well as in this Court is in regard to the delay in presenting the said Will for registration. An attempt should have been made as to 30 whether the person who identified the executant was really known to him. Therefore the contention of the plaintiffs that the document is a concocted document or a got up document cannot be considered as ill-founded. Apart from this, DW1 has admitted that name of his father was found in Ex.D1 till 2005 and name of his father also finds a place in Exs.D4 to D9. Defendant No.1 and his brothers had pursued the rent control proceedings in the High Court against the tenants arising out HRC Nos.24/1987 and 393/1985. This is also a circumstance which needed to be convincingly explained.
36. The decision of the Hon'ble Apex Court rendered in H.Venkatachala Iyengar Vs. B.N.Thimmajamma reported in AIR 1959 SC 443 is relevant. Reviewing the earlier case laws relating to proof of a Will, the Hon'ble Supreme Court has specifically held that the signature of the testator must be proved to be in his handwriting and for proving of such handwriting under Sections 45 and 47 of the Evidence Act, the expert's opinion can also be taken. Provisions of Section 31 63 of Indian Succession Act are special provisions relating to the proof of the same. These provisions coupled with the provisions of Section 68 prescribe the requirements and the nature of proof which must be specified by the party who relies on such a document.
37. As rightly pointed out in paragraph-6 of the decision of the Hon'ble Supreme Court, an attempt has to be made as to whether the testator has signed the Will and whether the testator had understood the nature and effect of the dispossessions in the Will and whether he subscribed his signature unto the Will knowing fully well what it contained.
38. It is in this regard the propounder will should be called upon to demonstrate by satisfactory evidence that the Will was signed by the testator and that the testator, at the relevant point of time, was in a sound and disposing state of mind having understood the nature and effect of such a 32 disposition and then only put his signature to the document out of his own free will.
39. In the present case, much credence cannot be attached to the deposition of DW1 because he is an interested witness being a beneficiary under the sale. The deposition of DW2 contains many inconsistencies which have cast serious doubt in the mind of the Court about the circumstances under which the Will is stated to have come into being. Much credence cannot be attached to the deposition of DW3 the scribe. Coupled with this, there is no explanation as to how the endorsement was made by Dr.Ranade. The probability of getting such an endorsement after the execution of Ex.D1 cannot be ruled out.
40. Admittedly, the testator was seriously ill due to paralysis. In certain cases, persons suffering from paralysis will also be not mentally fit. In the present case, the disposition made in the Will appear to be unnatural, improbable or unfair in the light of several circumstances 33 pointed out by the trial Court and this Court. Therefore, there is every possibility of the Will having coming to being under suspicious circumstances. When strong suspicious circumstances surround the execution of the Will, it is but natural that onus or burden will be very heavy on the propounder. Unless such onus is satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator.
41. Reassessing the entire evidence and applying the principles enunciated in H.Venkatachala Iyengar's case, this Court is of the opinion that the trial Court has adopted a right approach to the real state of affairs and has analysed the oral and documentary evidence in right perspective. The trial Court has pointed out serious lacunae in the case of the defendant and it has properly come to the conclusion that Will is surrounded by suspicious circumstances and that they have not been warded off by the propounder. Hence, point No.1 is answered in the affirmative.
34
42. In view of finding on point No.1, no interference is called for and the appeal is liable to be dismissed with costs.
ORDER Appeal filed under Section 96 of CPC challenging the impugned judgment dated 24.12.2005 passed by the III Addl. Civil Judge (Sr.Dn.), Belgaum, in O.S.No.68/2003, is dismissed with costs. Consequently judgment passed in O.S.No.68/2003 is confirmed.
SD/-
JUDGE JT/-