Karnataka High Court
Sri K Ramaiah Gowda vs Sri K Narayana Gowda on 27 September, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR. JUSTICE C.M.POONACHA
R.F.A. NO.283 OF 2011 (PAR)
C/W
RFA.CROB. NO.9 OF 2011 (PAR)
R.F.A.NO.283/2011
BETWEEN:
SRI K RAMAIAH GOWDA
S/O LATE CHIKKAGANGAPPA
AGED ABOUT 58 YEARS
PRESENTLY R/AT NO.81
1ST MAIN ROAD, 4TH CROSS
CHAMARAJPET
BANGALORE-560018.
...APPELLANT
(BY SRI. V B SHIVAKUMAR, ADV.)
AND:
1. SRI K NARAYANA GOWDA
S/O CHIKKAGANGAPPA,
SINCE DECEASED BY HIS LRS.
A) SRI PRABHAKARA K.N.
S/O LATE NARAYANA GOWDA K
2
AGED ABOUT 50 YEARS
COMFORT PALACE, FLAT NO.202
R/AT NO.98/3A-1, 29TH MAIN
2ND CROSS, BTM LAYOUT, 1ST STAGE,
BENGALURU-560068.
B) SRI CHANDRA SHEKAR K.N.
S/O LATE NARAYANA GOWDA K.
AGED ABOUT 45 YEARS
R/AT NO.193, 3RD MAIN,
5TH CROSS, CHAMARAJPET,
BENGALURU-560018.
C) SRI SRINIVAS K.N.
S/O LATE NARAYANA GOWDA K.
AGED ABOUT 40 YEARS
R/AT NO.193, 3RD MAIN,
5TH CROSS, CHAMARAJPET,
BENGALURU-560018.
D) SMT. PUSHPAVATHI
W/O SRI RAJKUMAR
D/O LATE NARAYANA GOWDA K
AGED ABOUT 47 YEARS
R/AT CE-6, GOVT. QUARTERS
CE BLOCK, TODDUNTER NAGAR
SAIDAPET, CHENNAI-600015.
E) SMT. SARASWATHI
W/O C.M. RANGANATH
D/O LATE NARYAYANA GOWDA K
AGED ABOUT 42 YEARS
R/AT NO.22, VRP OFFICER COLONY
OPP. RAILWAY KALYANA MANTAPA
YADAGIRI, ONTIKOPPAL
MYSORE-560020.
2. SMT. MAMATHA
D/O LATE AKKAPPA GOWDA
3
W/O SRI DEVARAJ
AGED ABOUT 38 YEARS
3. SMT LAKSHMIDEVI
D/O LATE AKKAPPA GOWDA
W/O SRI CHANDRASHEKAR
AGED ABOUT 26 YEARS
4. SMT. NIKHILA
D/O LATE AKKAPPA GOWDA
W/O SRI AJAY
AGED ABOUT 24 YEARS
5. SRI K A MANJUNATH
S/O LATE AKKAPPA GOWDA
AGED ABOUT 23 YEARS
6. MS. GEETHA
D/O LATE AKKAPPA GOWDA
AGED ABOUT 22 YEARS
RESPONDENT NOS.2 TO 6 ARE
R/AT NO.983, 11TH CROSS,
3RD MAIN SRINIVASANAGAR
BENGALURU-560050.
7. SMT. LAKSHMIDEVI
W/O SRI JAYASHANAKAR
MAJOR
R/AT NO.4/1, WEST OF CHORD ROAD
DEEPANJALI NAGAR,
VIJAYANAGAR
BANGALORE-560040.
8. SMT T.K. ASHWATHAMMA
D/O LATE CHINNAGANGAPPA
AGED ABOUT 53 YEARS
NO.115/11, BAPUJI LAYOUT
4
6TH CROSS, CHANDRA LAYOUT
VIJAYANAGAR
BANGALORE-560040.
...RESPONDENTS
(BY SRI.ASHWIN KUMAR, ADV. FOR R1(A, C & E)
SRI M MADANGOPAL, ADV. FOR R8
SRI S.M. RAJASHEKRAIAH, ADV. FOR R7
NOTICE TO R3, 5 & R1(A-E) ARE H/S V/O DT:21.07.2016
NOTICE SERVED ON R2, 4 & 6)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2010
PASSED IN O.S.1558/1999 ON THE FILE OF THE XXII-
ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE
SUIT FOR THE PARTITION AND SEPARATE POSSESSION.
RFA.CROB. NO.9/2011
BETWEEN:
1. SRI K NARAYANA GOWDA
S/O CHIKKAGANGAPPA,
SINCE DECEASED BY HIS LRS.
A) SMT. GANGALAKSHMI
W/O LATE SRI K NARAYANA GOWDA
AGED ABOUT 65 YEARS
B) SRI PRABHAKARA K.N.
S/O LATE NARAYANA GOWDA K
AGED ABOUT 48 YEARS
C) SRI CHANDRA SHEKAR K.N.
S/O LATE NARAYANA GOWDA K.
AGED ABOUT 44 YEARS
5
D) SRI SRINIVAS K.N.
S/O LATE NARAYANA GOWDA K.
AGED ABOUT 41 YEARS
E) SMT. PUSHPAVATHI
D/O LATE NARAYANA GOWDA K
AGED ABOUT 45 YEARS
F) SMT. SARASWATHI
D/O LATE NARYAYANA GOWDA K
AGED ABOUT 43 YEARS
ALL PERMANENT R/AT
NO.193, 3RD MAIN
5TH CROSS, CHAMRAJPET
BANGALORE-560 018.
...CROSS OBJECTORS
(BY SRI. M S ASHWIN KUMAR, ADV.1(A-F))
AND:
1. K RAMAIAH GOWDA
S/O CHIKKAGANGAPPA
R/AT CHARALUR HOBLI
KARUDAPALLI GRAMAM
HINDUPUR TALUK
ANANTHPUR DISTRICT.
2. CHIKKAGANGAPPA
DEAD AND HIS LRS ON RECORD
3. LATE AKKAPPA GOWDA
(DELETED)
SINCE DEAD BY LRS
6
3A) SMT GANGAMMA
W/O LATE AKKAPPA GOWDA
SINCE DEAD 3 (B) TO 3(F)
ARE ALREADY ON RECORD
3B) MAMATHA
D/O LATE AKKAPPA GOWDA
AGED ABOUT 17 YEARS
3C) LAKSHMIDEVI
D/O LATE AKKAPPA GOWDA
AGED ABOUT 14 YEARS
3D) NIKHILA
D/O LATE AKKAPPA GOWDA
AGED ABOUT 12 YEARS
3E) MANJUNATH
S/O LATE AKKAPPA GOWDA
AGED ABOUT 12 YEARS
3F) GEETHA
D/O LATE AKKAPPA GOWDA
AGED ABOUT 8 YEARS
3(A) TO E(F) ARE R/AT NO.193/2
3RD MAIN ROAD, 5TH CROSS
CHAMARAJPET
BANGALORE-560 018.
4. SMT. LAKSHMIDEVI
W/O SRI JAYASHANAKAR
MAJOR
R/AT OLD NO.40
NEW NO.19, 2ND CROSS
RAMACHANDRAPURA AGRAHARA
CHAMARAJPET
BANGALORE-560018
7
5. SMT. ASHWATHAMMA
W/O B M SHIVAKUMAR
MAJOR,
R/AT NO.52, 5TH MAIN,
DEVANATHACHAR STREET
CHAMARAJPET
BANGALORE-560018.
...RESPONDENTS
(BY SRI.V.B. SHIVAKUMAR, ADV. FOR R1
SRI M. MADANGOPAL, ADV. FOR R5
SRI S.M. RAJASHEKRAIAH, ADV. FOR R4
NOTICE TO R3(B-F) ARE H/S V/O DATED 15.07.2021)
RFA.CROB IS FILED U/O-41, RULE-22 OF OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.10.2010
PASSED IN O.S.1558/1999 ON THE FILE OF THE XXII-
ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
RFA NO.283/2011 AND RFA.CROB.NO.9/2011
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
10.09.2024 COMING ON THIS DAY, S.G.PANDIT J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
AND
HON'BLE MR JUSTICE C.M. POONACHA
8
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) The plaintiff's appeal under Section 96 of the Code of Civil Procedure, 1908, against the dismissal of O.S.No.1558/1999 for partition and separate possession under judgment and decree dated 30.10.2010 on the file of the 22nd Additional City Civil and Sessions Judge at Bangalore.
2. RFA Crob No.9/2011 is filed by the legal representatives of second defendant with a prayer to expunge or modify the observation that "with the above material, it is established that all the suit properties are self-acquisitions of defendant No.1 Chikkagangappa and on that premise only, there was return arguments filed."
3. The parties would be referred to as they stood before the Trial Court.
9
4. The plaintiff and defendants No.2 to 5 are the children of first defendant. The appellant-plaintiff filed a suit with a prayer for partition and separate possession of his 1/6th share in the entire suit schedule properties. The suit schedule properties consisted of 18 items in schedule-A, 24 items in schedule-B. The plaintiff stated that plaintiff and defendants are members of a Hindu Undivided Joint Family and they are in joint possession and enjoyment of the suit schedule properties. Further, it is averred that there is no severance or partition so far in the family of the first defendant. Smt.Lakshmamma, the mother of plaintiff, wife of first defendant died on 29.12.1998. The first defendant-Chikkagangappa acquired all the suit schedule properties with the help of his ancestral properties and also with the contribution of his sons mainly the plaintiff and defendant No.2 and his late Son Akkalappa Gowda. It 10 is also averred in the plaint that the suit schedule properties are all acquired and got registered in the names of different members of the family. The properties acquired in the name of plaintiff's mother are also joint family properties since they are all acquired out of joint family funds and plaintiff's mother Lakshmamma died intestate. Further, the plaintiff states that due to advanced age of the first defendant, he lost grip over his family members and the second defendant and his sons taking advantage of the advanced age of the first defendant, started unauthorizedly alienating some items of the suit schedule properties and misappropriated the same without properly accounting the income and expenditures realized out of such sale and out of the family business. The first defendant who is aged more than 80 years is not in a position to control or carry on or understand day to day affairs of the family as 11 Kartha of the family. After the death of first defendant's wife, he has completely lost his worldly thinking, identification, consciousness reasoning of his own acts and deeds. In the said circumstances, the plaintiff requested defendants No.1 and 2 to get divided their joint family properties. It is also sated that the first defendant is even unable to speak and understand and he has lost worldly knowledge and consciousness to lead day to day affairs, but the second defendant refused for partition.
5. On service of summons, the defendants appeared before the trial Court. The first defendant filed written statement stating that the properties in schedule-'A' and 'B' standing in his name are all self-acquired properties, acquired out of his own earnings. Further, he stated that the said acquisitions were without the assistance of his children in any manner. There were no ancestral or joint family properties. It is also 12 stated that the sons of the first defendant had their own avocation. Further, the first defendant stated that he is mentally sound although he is physically unstable because of old-age. The written statement also states that his written statement is prepared on his instructions and he is conscious of what he is doing. The first defendant specifically contended that out of his own volition he has made his last Will and Testament dated 12.01.1999 after canceling the earlier Wills, bequeathing properties to his children/grand sons who are parties to the suit. The first defendant has put his LTM to the written statement and written statement is certified by Dr.N.S.Anandappa stating that as per the observation, mental ability of defendant No.1, they found it normal, but physically unstable as he is suffering from parkinsonism. Further, he has certified that written statement was clearly explained to defendant No.1 13 Sri.Chikkagangappa in Kannada and Telugu and on understanding, he had subscribed his LTM in his presence.
6. The second defendant filed his independent written statement. In his written statement, he has stated that properties which stand in his name which are included in schedule 'A' and 'B' properties are self- acquired out of his own earnings. The said acquisitions were without the assistance of anybody in any manner. Further, the written statement also states that defendant No.1 Chikkagangappa has left a registered Will dated 12.01.1999 under which, he has bequeathed certain properties to him. The written statement filed by second defendant also gives details of properties bequeathed in his favour under the Will dated 12.01.1999.
14
7. The legal representatives of 3rd defendant also filed their separate written statement, stating that certain properties in schedule 'A' and 'B' were self- acquired properties of deceased 3rd defendant which were acquired out of his own earnings. Further, it is stated that the first defendant had left behind a registered Will dated 12.01.1999 bequeathing certain properties in favour of deceased 3rd defendant and his children. Further it is contended that there are no joint family properties that are to be divided amongst the members of the family and as such, the suit for partition filed by the plaintiff is misconceived.
8. Defendant No.5/daughter of first defendant in her separate written statement stated that Lakshmamma, mother of 5th defendant, wife of first defendant did not leave any Will and she died intestate. In her written statement, the 5th defendant claimed certain properties and also stated that the first defendant had 15 desired that certain of the house properties should be divided between two daughters i.e., defendants No.4 and 5.
9. Based on the pleadings of the parties, the trial Court framed as many as eight issues which are as follows:
1. Whether plaintiff proves that defendants and himself constituted Hindu-undivided family?
2. Further, plaintiff proves that the suit schedule properties are the joint family properties?
3. Whether defendant proves that legal representatives of deceased 3rd defendant proves that Sl.Nos.4 to 17, 11 to 14 and 18 of 'A' schedule properties and Sl.Nos.3, 5 to 8, 11, 17 to 19, 20A1, 20A2, 20A3, 20A4 of 'B' schedule properties were self acquired properties of deceased 1st defendant?
4. Further defendant No.2 and legal representatives of deceased defendant No.3 16 prove that deceased 1st defendant executed a Will dated 12.07.1999, bequeathing the properties in terms of the said Will?
5. Whether the defendant No.5 proves that she is the absolute owner of item No.18 of 'A' schedule property?
6. Whether the suit is liable to be dismissed for Non-inclusion of joint family properties?
7. Whether the plaintiff is entitled for 1/6th share in the suit schedule properties?
8. What decree or order?
10. The plaintiff, in support of his case examined himself as P.W.1, examined P.W.2/attesting witness to Ex.D32-First Will executed by defendant No.1 and also examined P.W.3 scribe of first Will-Ex.D32, apart from marking Ex.P1 to Ex.P37. Whereas, defendants examined D.W.1 to D.W.8. Defendant No.5, defendant No.2, defendant No.4, defendant No.3(A) examined themselves as D.W.1, D.W.2, D.W.3 and 17 D.W.4 respectively. Whereas, they examined D.W.5 attesting witness to Ex.D9, last Will of the first defendant; D.W.6 scribe of Ex.D9-last Will; D.W.7-
Dr.Anandappa N.S. who certified the written statement as well as Ex.D9; D.W.8 one Sri.M.S.Ashwin, Advocate & scribe of Ex.D49-
revocation of Will, apart from marking Ex.D1 to Ex.D49.
11. The trial Court, under impugned judgment and decree dismissed the suit, holding that defendant No.1 Chikkagangappa was fit both physically and mentally to execute Ex.D9 Will dated 12.01.1999 and rejected plaintiff's contention questioning validity of the Will based on the physical and mental incapacity of defendant No.1 Chikkagangappa.
12. Heard Sri.V.B.Shivakumar, learned counsel for the appellant, Sri.Ashwin Kumar, learned counsel for 18 respondents No.1 (a, c and e). Perused the original trial Court records.
13. Learned counsel Sri.V.B.Shivakumar for appellant would submit that the plaintiff and defendants are members of Hindu undivided joint family and as they were in joint possession and enjoyment of the suit schedule properties; as the defendant No.1 lost his control over his mind as well as over family members, the second defendant and his sons attempted fraudulent transfers, he sought partition of the joint family properties which was refused. It is submitted that first defendant-father executed Will dated 26.03.1997 (Ex.D32) bequeathing all his properties when he was hale and healthy and when he was in a sound state of mind. But, he submits that Will at Ex.D9 dated 12.01.1999, alleged last will of defendant No.1 is a fraudulent one and executed in suspicious circumstances. Learned counsel would submit that as 19 on the date of execution of Ex.D9 dated 12.01.1999, defendant No.1 was suffering from Parkinson's disease and defendant No.1 was physically unable to move and he was not in a normal or sound state of mind. Thumb impression on the Will is taken forcefully and further he also doubts whether it is the thumb impression of his father i.e., defendant No.1. It is submitted that though the Will dated 12.01.1999 (Ex.D9) is a registered document, as defendant No.1 was suffering from Parkinson's disease, it is doubtful as to whether he went to Sub-Registrar office and affixed his thumb impression on the date of registration. Learned counsel would further submit that the thumb impression found on Ex.D9 is not that of defendant No.1 and to prove that thumb impression as that of defendant No.1, no expert evidence is adduced. Learned counsel invites attention of this Court to evidence of D.W.2 - defendant No.2 wherein 20 he has deposed that Dr.Anandappa - D.W.7 made necessary endorsement in the Will certifying that defendant No.1 was not in a position to sign his name and that he has affixed his LTM on the document. Further, learned counsel would submit that D.W.7 - Dr.Anandappa was brought by one Siddappa, father- in-law of son of defendant No.2. D.W.7 was an ordinary doctor and he was not a specialist. Learned counsel also points out that D.W.2 in his cross- examination has stated that on the date of registration, his father was taken to Sub-registrar office in an Autorickshaw and he had accompanied in Autorickshaw along with its Scribe Sri.K.Panduranga i.e., D.W.6. He submits that when D.W.2 deposed that at the time of execution of Will, defendant No.1 was not in a position to put his signature and he had put his LTM, it is clear that defendant No.1 was not physically fit either to sign or to attend the Sub- 21 registrar office. Further, learned counsel referring to Ex.D49 dated 08.01.1999 - revocation of first Will submits that if the first defendant were to execute second Will dated 12.01.1999 (Ex.D9), there was no necessity to revoke the first Will by a registered document i.e., Ex.D49. Referring to sequence of dates i.e., execution of Ex.D49 dated 08.01.1999 and Ex.D9
-Will dated 12.01.1999, learned counsel would submit that when defendant No.1 - father was not physically fit and when the evidence of witnesses would indicate that he was not in a position to put his signature, it is to be held that Ex.D9 - Will dated 12.01.1999 is not a genuine one and there are various suspicious circumstances in its alleged execution. In that regard, learned counsel Sri.V.B.Shivakumar has taken us through the evidence of each and every witness and reiterates his submission that the Will is executed in a suspicious circumstances.
22
14. Learned counsel Sri.V.B.Shivakumar would further submit that defendant No.1 filed written statement on 26.03.1999 and the said written statement also would not contain his signature, but it contains the thumb impression and the written statement is also certified by D.W.7- Dr.N.S.Anandappa, certifying that the mental ability of defendant No.1 was normal; that defendant No.1 was not in a position to sign and he has put his thumb impression. Further, learned counsel would submit that the scribe of Ex.D49 - Sri.M.S.Ashwin, Advocate is examined as D.W.8 and having deposed in the suit as witness, he could not appear in the appeal and defend on behalf of LRs of defendant No.2.
15. Learned counsel would submit that if this Court were come to the conclusion that Ex.D9 - Will dated 12.01.1999 is executed in suspicious circumstances, 23 Ex.D32 - Will dated 20.06.1997 would get revived and all the family members would get the properties as bequeathed by defendant No.1 in the said Will. Thus, learned counsel would pray for allowing the appeal.
16. Per contra, learned counsel Sri.Ashwin Kumar for defendant Nos.1(a), (c) and (e) would support the judgment and decree passed by the Trial Court and submits that as contended by the appellant, Ex.D9 Will dated 12.01.1999 is not executed in suspicious circumstances, but it is a registered Will executed in accordance with law. Learned counsel would submit that, Ex.D9 was executed on 12.01.1999 and before executing the said Will, earlier Will at Ex.D32 dated 26.03.1997 was cancelled by a registered cancellation deed - Ex.D49 dated 08.01.1999. Further, learned counsel inviting attention of this Court to Ex.D32 - Will dated 26.03.1997 and Ex.D9 dated 12.01.1999 would submit that under both the Wills, properties are 24 allotted to all the children of defendant No.1 and it is not correct to submit that no properties are allotted to the appellant/plaintiff under Ex.D9 Will dated 12.01.1999. Learned counsel invites attention to written statement filed by second defendant and submits that second defendant has specifically contended that defendant No.1 has left behind a registered Will dated 12.01.1999 and also details of properties bequeathed in favour of each children of defendant No.1 is furnished.
17. Learned counsel Sri.Ashwin Kumar strongly denies the allegation of the plaintiff that Ex.D9 Will dated 12.01.1999 is executed in suspicious circumstances and also denies the allegation that it is doubtful that defendant No.1 attended the Sub-Registrar Office as on the date of its registration. Learned counsel would submit that both the Wills at Ex.D9 and Ex.D32 dated 12.01.1999 and 26.03.1997 respectively are registered 25 Wills. Though the plaintiff was aware of both the Wills, he has not mentioned in the plaint with regard to both the Wills. Refuting the allegation of plaintiff to the effect that defendant No.1 was not able to speak and has lost worldly knowledge, submits that in that circumstances plaintiff then ought to have filed application under Order 32 of CPC and non-filing of such application itself establishes that the allegation of plaintiff are false. With regard to allegation of plaintiff that the attesting witness as well as DW7 - doctor were brought by father-in-law of son of defendant No.2, he submits that only persons known to the family or trusted person would normally be called as witnesses or to get the Will scribed. He submits that no stranger could be called to scribe the Will or to sign as witness. Learned counsel specifically draws attention of this Court to evidence of PW1 and submits that in his examination-in-chief as well as in his cross- 26 examination, plaintiff has admitted that the plaint schedule properties are the self-acquired properties of father - defendant No.1 and he has also admitted that he had no independent source of income. Learned counsel would also submit that plaintiff has also admitted that he knows the details of the properties that have been allotted to him by his father - defendant No.1 under Ex.D9 Will dated 12.01.1999. Further, learned counsel dispelling the allegation of execution of Will under suspicious circumstances would submit that, it is a registered Will and as required under Section 63 of the Indian Succession Act, one of the attesting witness is examined as DW5 and the Scribe is also examined as DW6. Further, learned counsel would submit that DW6 - Scribe of the Will has deposed that he assisted Channigapa to affix LTM on the Will and further deposed that he went to Sub- Registrar office along with other children of 27 Channigappa. Learned counsel referring to Ex.D49 - Cancellation Deed would submit that Ex.D49 was prepared by him and he was examined as DW8 before the Court. He would submit that there was no necessity to execute Ex.D49 - Cancellation Deed and on execution of Ex.D9, earlier Will at Ex.D32 would automatically stands cancelled.
18. Learned counsel Sri.Ashwin Kumar would submit that it is an admitted fact that defendant No.1 was suffering from Parkinson's disease and he died on 14.02.2000, subsequent to filing of written statement in the suit. He submits that a person who suffers from Parkinson's disease would physically suffer and he may not be in a position to move freely, but a person who is suffering from Parkinson's disease would not loose his control over the mind and he would remain in a good mental condition. In that regard, he also 28 invites attention to testimony of DW7 - Doctor's evidence. Thus, he prays for dismissal of the appeal.
19. Learned counsel appearing for the parties have placed reliance on several judgments of the Honb'le Apex Court and this Court. The decisions which are relevant would be discussed during the course of this judgment.
20. On hearing the learned counsel for the parties and on perusal of the entire trial Court records, the only point which falls for consideration is, as contended by the appellant whether the Will dated 12.01.1999 Ex.D9 executed by defendant No.1 is surrounded by suspicious circumstances and whether finding of the trial Court on issue No.4 that defendant and legal representatives of deceased defendant No.2 have proved the Will dated 12.01.1999, is proper and correct?
29
21. The answer to above point would be that the appellant has failed to prove that the Will Ex.D9 is executed under suspicious circumstances and the trial Court has rightly answered issue No.4 holding that the defendants have proved Ex.D9 Will dated 12.01.1999 for the following reasons:
The relationship between the parties is not in dispute. The plaintiff and defendants No.2 to 5 are children of defendant No.1. Plaintiff's suit is one for partition and separate possession by metes and bounds of the plaintiff's 1/6th share in the entire suit schedule properties. It is the categorical case of the plaintiff/appellant that the plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties and there is no severance or partition so far in the family of defendant No.1 as on the date of filing the suit. The plaintiff who got examined himself as P.W.1, in his cross-examination admitted that the 30 plaint schedule properties are self-acquired properties of his father, defendant No.1. Further, he has also admitted that he had no independent source of income and he has not acquired any property in his name. Further he stated that all the properties which are included in the plaint schedule are the properties of his father.
22. The first defendant in his written statement has specifically contended that out of his own volition and with sound state of mind although, physically unstable because of old age, executed his last Will and testament dated 12.01.1999 (Ex-D9) after canceling the earlier Wills, bequeathing properties to his children/grand sons. The first defendant has affixed his LTM to the written statement and written statement is accompanied by certificate of D.W.7/ Dr.Anandappa N.S. who has certified that mental ability of defendant No.1 was found to be normal, but 31 he is physically unstable as he is suffering from Parkinson's disease. D.W.7 also states in his certificate that the matter was explained to defendant No.1 both in Kannada and Telugu and he has understood the same and subscribed his LTM in his presence. Subsequent to filing of the written statement, the first defendant died on 14.02.2000. Thereafter, second defendant filed his written statement contending that defendant No.1 has left a registered Will dated 12.01.1999 bequeathing certain properties. Though plaintiff has not stated about the Wills i.e., Ex.D32 dated 23.06.1997 or Ex.D9 dated 12.01.1999 in the plaint averments, but, in his examination-in-chief he has stated that he is in possession of certain items of 'A' schedule properties in terms of Will dated 23.06.1997 (Ex.D32). Further, PW-1 in his examination-in-chief, states that the Will dated 32 12.01.1999 Ex.D9 produced by defendant No.2 is forged document and not according to law.
23. When defendant No.2 takes up the defense of Will dated 12.01.1999 (Ex.D7), burden is on the person who takes up such defense to prove the Will. The Will shall have to be proved as required under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. In terms of Section 63 of the Indian Succession Act, which provides for proving of execution of document required by law to be attested states that if a document is required to be attested, it shall not be used as evidence until atleast one attesting witness is examined. Especially, when a Will is to be proved atleast, one attesting witness shall be examined. Section 63 of the Indian Succession Act also requires that the attestor or executant shall sign or affix his mark to the Will in the presence of other person or persons and it 33 requires that Will shall be attested by two or more witnesses.
24. Both the learned counsel appearing for the appellant as well as legal representatives of respondent No.2 place reliance on the decision of the Honb'le Apex Court in H.VENKATACHALA IYENGAR v/s B.S.THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443, wherein the Honb'le Apex Court lays down certain principles with regard to legal position in the matter of proof of Will. Relevant paragraphs 18, 19, 22 and 23 reads as follows:
"18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions 34 which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that 35 the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied 36 would be the usual test of the satisfaction of the, prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. 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 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 his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to 37 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 propounder can be taken to be discharged on proof of the essential facts just indicated.
20. X X X X X X
21. X X X X X X
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the 38 nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895: (AIR 1946 PC 156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
23. It is in the light of these general considerations that we must decide whether the appellant is justified in contending that the finding of the High Court against him on the question of the valid execution of the will is justified or not. It may be conceded in favour of the appellant that his allegation that Lakshmamma has put her signatures on the will at five places is proved; that no doubt is a point in his favour. It may also be taken as proved that respondent I has failed to prove 39 that Lakshmamma was unconscious at the time when the will is alleged to have been executed. It is true she was an old woman of 64 years and had been ailing for some time before the will was executed. She was not able to get up and leave the bed. In fact she could sit up in bed with some difficulty and was so weak that she had to pass stools in bed. However, the appellant is entitled to argue that, on the evidence, the sound and disposing state of mind of Lakshmamma is proved. Mr Iyengar, for the appellant, has strongly urged before us that, since these facts are established, the Court must presume the valid execution of the will and in support of his contention he has invited our attention to the relevant statements on the point in the text books dealing with the subject. Jarman on "Wills" (Jarman on "Wills"-Vol. I, 8th Ed., p.50) says that " the general rule is that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator'." He adds that, "if a will is rational on the face of it, and appears to be 40 duly executed, it is presumed, in the absence of evidence to the contrary, to be valid."
Similarly, Williams on "Executors and Administrators" (Williams on "Executors and Administrators" -Vol. 1I, 13th Ed., P.92) has observed that, "generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the will having been read over to the testator or of instructions having been given is not necessary. "On the other hand, Mr. Viswanatha Sastri, for respondent No.1, contends that the statements on which the appellant has relied refer to wills which are free from any suspicions and they cannot be invoked where the execution of the will is surrounded by suspicious circumstances. In this connection, it may be pertinent to point out that, in the same text books, we find another rule specifically mentioned." Although the rule of Roman Law", it is observed in Williams, " that " Qui se scripsit haeredem "
could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by 41 its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased"
(Williams on "Executors and Administrators", Vol.I, 13th Ed., P 93.)"
25. In APOLINE D'SOUZA vs. JOHN D'SOUZA reported in AIR 2007 SC 2219, in the matter of proof of Will, the Honb'le Apex Court placing reliance on THIMMAJAMMA case (supra) at paragraph 13 has held as follows:
"13. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW-2 only. Both the daughters of the testatrix were nuns. No property, 42 therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will."43
26. The appellant also placed reliance on the decision of BHAGWAN KRISHAN GUPTA v/s PRABHA GUPTA AND OTHERS reported in AIR 2009 SC 1631 where the Honb'le Apex Court was considering interpretation of Will and at paragraph 12 of the judgment has held as follows:
"12. A will is required to be construed like any other instrument. Where however, a doubt arises in regard to the intention of the testator, recourse to the arm chair rule is invoked. It is neither in doubt nor in dispute that for the said purpose the conduct of the testator in regard to dealing with the property in question would be admissible. The fact that the property in question stood in the name of the testator is not in dispute. It, however, stands accepted that both the brothers contributed equally not only for acquisition of the said property but also raising constructions thereupon."
27. The legal representatives of respondent No.2 placed reliance on the decision of Honb'le Apex Court 44 in DEREK A.C. LOBO AND ORS. vs. ULRIC MA LOBO (DEAD) BY L.Rs AND ORS reported in 2023 SCC ONLINE SC 1893 wherein the Honb'le Apex Court has observed that it would suffice to examine one of the attesting witnesses to prove the Will and it has also observed that the contestant opposing Will has to raise surrounding suspicious circumstances specifically and not vaguely or in a general manner. The relevant paragraphs 10 and 16 reads as follows:
"10. Section 63 of the Succession Act prescribes the mode and method of proving a Will and going by the provisions under Section 68 of the Evidence Act, though a Will shall not be used as evidence until one of the attesting witnesses has been examined. It will suffice to examine one of the attesting witnesses to prove the same. We may hasten to add and emphasize here that well-founded suspicious circumstance(s) if made out by any contestant opposing the Will concerned will shift the onus on the propounder to dispel such circumstance(s) to the satisfaction of 45 the Court. In the case on hand, there is no dispute with respect to the fact that one of the attesting witnesses, namely, Gregory Paris was examined and as such, there can be no case that the mandate under Section 68 of the Evidence Act was not complied with. There can also be no dispute that the witness had signed the Will in the presence of the testatrix after she had executed the same, going by the evidence on record.
16. In the light of the aforesaid decisions, it can be safely said that once the burden to prove is discharged by the propounder in terms of Section 63 of the Succession Act and Section 68 of the 25 Evidence Act, and by adducing prima facie evidence proving the competence of the testator, the onus is on the contestant opposing to show prima facie the existence of suspicious circumstances so as to shift the onus on the propounder to dispel them. Without knowing the circumstances, which according to the contestant opposing are suspicious, how will the propounder be able to dispel them and to convince the court 46 about its genuineness and validity. We are saying that the contestant opposing the Will has to raise surrounding suspicious circumstances specifically and not vaguely or in a general manner. A case of well-founded suspicion has to exist to cause shifting of onus back to the propounder once he discharged his burden to prove the execution of the Will. We may hasten to add that we shall not be understood to have held that failure of the party/parties to plead suspicious circumstances would automatically make the court to take a Will as validly proved even where the circumstance(s) raising doubt is inherent in the document. Certainly, in such circumstances the propounder has to convince the court and dispel such suspicious circumstances.
28. From the above decisions and principles laid down by the Honb'le Apex Court, it is clear that initially it is for the propunder to prove the Will by examining atleast one of the attesting witnesses to the Will and to dispel the suspicious circumstances to 47 the satisfaction of the Court. Thereafter, it is for the other side to prove otherwise.
29. Before examining the evidence on record, it is relevant and important to appreciate the observation of the trial Court that, when Chikkagangappa- defendant No.1, the Executant of Ex.D9/Will dated 12.01.1999 has admitted the execution, there remains very little to prove the Will. Though defendant No.1 died subsequent to filing of written statement, has specifically contended in his written statement that he executed the last Will and testament on 12.01.1999 (Ex.D9) and D.W.7-Doctor has certified that his mental ability was found to be normal and understood the same and has subscribed his LTM in his presence. The plaintiff has failed to produce any material to disbelieve the Certificate of D.W.7 enclosed to the written statement of defendant No.1. Mere statement of plaintiff that his father i.e., defendant No.1 was not 48 in a good state of mind or that he was physically unstable and unfit would not be sufficient to overcome the Certificate of D.W.7/Doctor.
30. To prove the Will, defendant No.2 examined himself as D.W.2, apart from examining D.W.5- Shivakumar V. Appa, an attesting witness to Ex.D9 Will dated 12.01.1999, D.W.6-K.Panduranga, Scribe of Ex.D9-Will dated 12.01.999 and D.W.7- Dr.N.S.Anandappa who has certified the Will (Ex.D9) as well as written statement of defendant No.1. There cannot be any straight jacket formula by which, it can be held that the Will is proved or not proved. The proof of Will depends on the evidence in each case and also depends, whether the propunder has satisfied the conditions or criteria of Section 68 of the Indian Evidence Act as well as Section 63 of the Indian Succession Act.
49
31. The appellant/plaintiff has made great effort and tried to make out a case that defendant No.1 - testator of Ex.D9 Will dated 12.01.1999 was incapable of executing a Will on the premise that he was suffering from Parkinson's disease and that he was not physically and mentally fit to execute the Will, but there is no material or evidence to that effect. The appellant/plaintiff has failed to prove that Parkinson's disease prevented defendant No.1 from executing Ex.D9 Will dated 12.01.1999 or that he was bedridden and unable to move out of the bed. DW1 in his examination-in-chief has only stated that Ex.D9 Will dated 12.01.1999 produced by Sri.Narayanagowda - defendant No.2 is forged document and not in accordance with law. Nothing about the health or mental status of defendant No.1 is stated or what was the disability or what prevented defendant No.1 from executing the Will is not forthcoming. In the cross- 50 examination, he has stated that after the death of his mother, his father became mentally upset so much that he could not even identify him. Further, he has stated that his father was examined in Wenlock Hospital at Chamarajpet, Bengaluru. Further he stated that he did not collect relevant records from the hospital and he cannot say as to in which particular year his father was taken to Wenlock Hospital. He also stated in his cross-examination that his father was suffering from Parkinson's disease. No material evidence or expert is examined by plaintiff to bring on record what was the condition of his father as on the date of executing Ex.D9 - Will dated 12.01.1999 and how Parkinson's disease had affected the physical and mental condition/ability of defendant No.1.
32. On the other hand, DW2 i.e., defendant No.2 - K.Narayana Gowda, brother of the plaintiff has deposed that defendant No.1 at the time of execution 51 of the Will was not in a position to put his signature and accordingly he had put his LTM. He has also stated that his father was taken to Sub-Registrar Office in an Authorickshaw and he accompanied his father to Sub-Registrar office along with Panduranga, the Scribe - DW6. DW2 in his cross-examination has further stated that his father's hands were trembling, but he was in a good health. He also stated that DW7
- Dr.Anandappa told him that his father was alright. DW5 - Shivakumar V. Appa is attesting witness to Ex.D9 - Will dated 12.01.1999. In his examination-in- chief, he has stated that Chikkagangappa - defendant No.1 executed the Will in his presence and in the presence of another witnesses Sri.Anantha.M., Scribe of the Will Sri.K.Panduranga - DW6 and Dr.Anandappa - DW7.
33. DW5 in his cross-examination when he was questioned with regard to health condition of 52 Chikkagangappa - defendant No.1, he has answered as follows:
"5. Question: Were you aware of health condition of Chikkagangappa when he was residing according to you in the house of Narayanagowda?
Answer: He was walking around. He was speaking to me. According to me his heath condition was normal, but he was aged.
I noticed that his hands were shaky. I do not know whether the age of Chikkagangappa was 85 years as on the date of Ex.D9.
Question: Are you aware as to whether Chikkagangappa was in a position to identify his children, grand children and relatives?
Answer: I do not know whether Chikkagangappa was in a position to identity his children, grand children and relatives. But I can only say that Chikkagangappa was identifying me and speaking to me."53
34. Further, he has also stated that he do not know whether Chikkagangappa was suffering from loss of memory at that point of time and he has also stated that he did not know as to whether or not Chikkagangappa was having mental capacity either to dictate or draft EX.D9, but he has also stated that generally, Chikkagangappa was responding and reacting to whatever questions that he was asking.
35. DW6 - Scribe of Ex.D9 Will dated 12.01.1999 stated that testator - defendant No.1 marked his signature/thumb impression in his presence and also in the presence of the Doctor - DW7 and two other witnesses. DW7- Dr.Anandappa has certified with regard to health and mental condition of defendant No.1 - testator to Ex.D9 - Will dated 12.01.1999 as well as to the written statement filed in the present suit.
54
36. DW7 - Dr.Anandappa in his examination-in-chief has specifically stated that on the day of execution of Will, as per his observation, mental ability of defendant No.1 was found to be normal, but he was suffering from Parkinson's disease. The Will was clearly explained by him to Sri.Chikkagangappa who understood the same and thereafter subscribed his LTM to the Will in his presence. He also stated that Chikkagangappa had also mentioned that the Will was written according to his instructions. The plaintiff has cross-examined DW7 at length, but the plaintiff has failed to elicit anything in his cross-examination to support his case. In his cross-examination, DW7 has stated that Parkinson's disease is purely a neurological disorder. Further, he has stated in his cross- examination that Parkinson's disease pertains to disease to the cerebrum which is called small brain, due to which the patients will be having 55 consciousness, control over the brain, but not control over the movements in the body. He has also stated that Chikkagangappa - defendant No.1 did not suffer from loss of memory and he was able to identify the persons present nearby.
37. From the evidence of DW1, DW2, DW5, DW6 and DW7, the Court can safely come to the conclusion that defendant No.1-testator of Ex.D9-Will dated 12.01.1999 though was suffering from Parkinson's disease he was in a good mental ability/condition to execute the Will. Further, it is clear that Parkinson's disease had not affected the consciousness or mental ability of testator. There is also no expert evidence or material to say that Parkinson's disease would affect mental ability. There is no evidence or material in support of plaintiff's contention that the testator - defendant No.1 was not in a good and sound state of mind to execute the Will. The above evidence would indicate that the testator - 56 defendant No.1 was not physically fit, but he was mentally sound, alert and was able to understand and identify the persons.
38. Learned counsel for the appellant also contended that since defendant No.2 brought DW7 - Doctor as well as Scribe - attesting witness, it would be one of the reasons to say that the Will is executed in suspicious circumstances. It is also contended that the thumb impression found on Ex.D9 - Will are not from the tip of the finger and defendant No.1 was forced to put thumb impression. Normally when a Will is executed, Scribe and attesting witnesses cannot be strangers. Always attesting witnesses and Scribe would be the persons who are close to the family and persons who know in and out of the family. Merely because the Scribe and attesting witnesses are brought by father-in-law of son of defendant No.2, it 57 cannot be said that Will is surrounded by suspicious circumstances or Will is a created one.
39. Section 63 of the Indian Succession Act requires examination of attesting witness to prove the Will. DW5 is the attesting witness and DW6 is the Scribe of Ex.D9 Will dated 12.01.1999. DW5 - attesting witness in his examination-in-chief has stated that he was the first attesting witness to the Will dated 12.01.1999 executed by Sri.Chikkagangappa and the Will came to be registered in the office of the Sub-Registrar, Basavanagudi, Bengaluru on 31.07.1999. He also deposed that Will contains LTM of Chikkagangappa at the bottom of pages 1 to 11 and at page 12 where the contents of the Will end, he identified the LTM of Chikkagangappa in the Ex.D9, Will dated 12.01.1999. He has also deposed that Will was executed in his presence and in the presence of another witness Sri.Anantha.M., Scribe Sri.K.Panduranga (DW6) and 58 Dr.Anandappa N.S. (DW7) who certified on the last page of the Will dated 12.011999 (Ex.D9). He has also stated that he could identify the signatures of those persons. In his cross-examination, he has stated that he was present when Chikkagangappa gave instructions to K.Panduranga (DW6) - Scribe. It is pertinent to state here that attesting witnesses need not be present when testator instructs the Scribe while preparing the Will. The attesting witnesses shall be present when the testator puts his signature or mark on the Will. The testator shall put his signature or mark in the presence of attesting Witnesses. Further, DW5 states that Chikkagangappa - testator has affixed his LTM to Ex.D9.
40. DW6 - Scribe, K.Panduranga has deposed that DW1 - testator, Chikkagangappa executed Will in the presence of two witnesses i.e., Shiva Kumar V. Appa - DW1 and Sri.M.Anantha and Dr.Anandappa.N.S., 59 (DW7), all being present at the same time. He has further deposed that Ex.D9 document was scribed by him. The executant of the Will - Chikkagangappa was identified by him before the Sub-Registrar at the time of registration. He has also stated that he affixed his signature as a person identifying the said executant. His signature is marked as Ex.D9(c). He has also stated that he attested the LTM of Chikkagangappa on Ex.D9 and his signature for having attested the LTM of Chikkagangappa is marked as Ex.D9(d). He has further stated that all writings made around the LTMs on each page as LTM of Chikkagangappa in Kannada language are his hand writings. Further in his cross- examination, he has stated that DW7 - Doctor read what he had scribed in the Will to Chikkagangappa in Kannada and sometimes he used words in Telugu. He has also stated that he assisted Chikkagangappa to affix his LTM on the Will.
60
41. Thus, from the above evidence, it is clear that LTM found on the Ex.D9 - Will dated 12.01.1999 is that of testator - defendant No.1 Chikkagangappa and the same was registered on 31.07.1999 at the Sub- Registrar office in the presence of testator.
42. Learned counsel Sri.V.B.Shivakumar also contended that under Ex.D49, Ex.D32 Will dated 26.03.1997 was cancelled, but nothing is mentioned about the prior Will or cancellation of prior Will in Ex.D9 Will dated 12.01.1999. Ex.D9 - Will dated 12.01.1999 need not contain about the prior Will or its cancellation. When a Will is executed on a particular date, automatically all earlier Wills or testaments would get cancelled and the latest Will would prevail over all earlier Wills.
43. Learned counsel Sri.V.B.Shivakumar for appellant lastly contended that under Ex.D32 - Will dated 61 26.03.1997, Chikkagangappa, testator - defendant No.1 had distributed his properties to all his children almost equally, but under Ex.D9-Will dated 12.01.1999, there is no equitable distribution and major portion of the properties are given to defendant No.2. It is to be borne in mind that Will is a wish of a person. Under a Will, a person can bequeath or distribute properties owned by him at his wish and under the Will, no one can expect or anticipate equal distribution of properties. For a testator while distributing properties owned by him under a Will, he would have taken into consideration several aspects, love and affection towards a particular person, son/daughter and also he would keep in mind about the person who has taken care of him, thereafter he makes up his mind to bequeath or distribute the properties. Merely because there is no equitable 62 distribution of properties, it cannot be said that Will is surrounded by suspicious circumstances.
44. For the reasons recorded above and particularly, as observed by the Trial Court that Chikkagangappa, testator - defendant No.1 has admitted the execution of Ex.D9 Will dated 12.01.1999, at no stretch of imagination, it can be held that Will is surrounded by suspicious circumstances. There is no merit in any of the contentions raised by the appellant.
45. RFA.CROB.No.9/2011 is by defendant No.2 who died during the pendency of the appeal and his LRs are on record, is to expunge or modify the portion of the observation made by the Trial Court that "with the above material, it is established that all the suit properties were self-acquisition of defendant No.1 Chikkagangappa". It has come on record that all the suit schedule properties are self-acquired properties of 63 defendant No.1 - Chikkagangappa. PW1 in his cross- examination has also admitted that the suit schedule properties are the self-acquired properties of his father and that he has not acquired any property in his name. DW2 - K.Narayanagowda though in his evidence states that he was carrying on the business of Jaggery; he had purchased lands in the year 1955 when he was aged 16 years, he has stated that he has no documents to show that he had earnings from the business in the year 1955. No material is placed on record to establish that defendant No.2 had independent income and that he had acquired properties in his name from his independent income. Therefore, in the absence of any evidence or material on record, we are of the view that there is no ground to interfere with the judgment and decree under challenge.
64
46. Accordingly, the judgment and decree under appeal in O.S.No.1558/1999 dated 30.10.2010 on the file of the 22nd Additional City Civil and Sessions Judge at Bangalore is confirmed.
47. Hence, both the appeal and Cross-objection stand dismissed.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(C.M. POONACHA) JUDGE MPK/NC CT: bms