Karnataka High Court
Sharada W/O Basanagouda Patil vs Shivagangawwa W/O Siddappa Yallur on 15 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:581
RFA No. 100079 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100079 OF 2015 (PAR)
BETWEEN:
1. SMT. SHARADA W/O. BASANAGOUDA PATIL,
SINCE DECEASED REP. BY HER L.RS.
APPELLANTS NO.2, 3 AND 4.
2. SHRI SHIDDANAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: WADARATTI-591307,
TQ: GOKAK, DIST: BELAGAVI.
3. SHRI CHANDRASHEKARAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: TIMMAPUR P.G.-591136,
TQ: GOKAK, DIST: BELAGAVI.
4. SHRI VASANTAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
Digitally signed R/O: TIMMAPUR P.G.-591136,
by MANJANNA E TQ: GOKAK, DIST: BELAGAVI.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA (BY SRI SANJAY S.KATAGERI, ADVOCATE FOR A2 TO A4
(A2 TO A4 ARE TREATED AS LR'S OF A1 V/O
DATED 11.04.2023))
AND:
1. SMT. SHIVAGANGAWWA
W/O. SIDDAPPA YALLUR,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O: TAPASHI-591101, TQ: GOKAK,
DIST: BELAGAVI.
2. SHRI BHIMAGOUDA
S/O. SIDDHAGOUDA PATIL,
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NC: 2025:KHC-D:581
RFA No. 100079 of 2015
SINCE DECEASED BY HIS L.RS
RESPONDENTS NO.2(A TO D).
2(A) SMT. SHANTA
W/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 53 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
2(B) VANITA
D/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 38 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
2(C) SIDDANGOUDA
S/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 36 YEARS, OCC. AGRICULTURE,
2(D) LAXMI
D/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 30 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
ALL THE RESPONDENTS NO.2(A), 2(B) ARE NOW
RESIDING AT
C/O. KIRAN V.PATIL,
PLOT NO.1942, SECTOR NO.9,
NEAR SAI MANDIR, ANJANEYA NAGAR, BELAGAVI,
PINCODE-590016.
...RESPONDENTS
(BY SRI P.G. NAIK, ADVOCATE FOR R1;
R2 DECEASED V/O DATED 19.11.2024
R2(A), R2(B), R2(C) AND R2(D)-NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND
DECREE DATED 29.11.2014 IN O.S. NO.323/2007 PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE, GOKAK, BE KINDLY SET ASIDE, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY DISMISSING THE
SUIT IN O.S. NO.323/2007 WITH COST, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2025:KHC-D:581
RFA No. 100079 of 2015
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendant Nos.1 to 4 in the suit, challenging the judgment and decree dated 29.11.2014, passed in O.S.No.323/2007, by the Court of I Additional Senior Civil Judge, Gokak, whereby the suit filed for partition is decreed and the plaintiff is granted 1/3rd share in all the suit schedule properties except in suit schedule item Nos.5 and 6.
2. The plaintiff has filed a suit for partition claiming 1/3rd share in all the suit properties. It is not disputed that one Siddanagouda is the original propositus. Kashawwa is wife of Siddanagouda. Both Siddanagouda and Kashawwa had three children namely, Basanagouda, Shivagangawwa and Bhimagouda. Plaintiff is daughter of Siddanagouda and Kashawwa and defendant No.1 is wife of Basanagouda and defendant Nos.2 to 4 are children of defendant No.1 and Basanagouda. By stating that the suit -4- NC: 2025:KHC-D:581 RFA No. 100079 of 2015 properties are ancestral and joint family properties, the plaintiffs filed suit for partition.
3. The defendant Nos.1 and 3 to 5 have filed written statement and opposed the suit. The defendant No.2 has not filed written statement. It is the defence pleaded in the written statement that after demise of Siddanagouda and Kashawwa, they inherited the suit property as it was tenancy lands inherited through her mother. The said Kashawwa had executed registered Will dated 29.11.2006 bequeathing the plaint 'A' schedule properties in favour of husband of defendant No.1 and defendant No.5. Therefore, it is not amenable for partition.
4. After filing written statement by the defendant Nos.1 and 3 to 5, the plaintiff got amended the plaint by raising specific contention that after the death of propositus, since the children were all minor, the suit properties were all mutated in the name of Kashawwa and since the said properties are not the self-acquired properties of Kashawwa, she had no right to execute the -5- NC: 2025:KHC-D:581 RFA No. 100079 of 2015 Will, though the said properties were all standing in her name. Therefore, pleaded by questioning the competence of Kashawwa to execute Will and also pleaded that the Will is created and concocted as the said Kashawwa was old aged and was not in a sound disposing state of mind so as to bequeath the suit properties.
5. The trial Court upon completion of the pleadings, has framed the following issues:
i. Whether the plaintiff proves that the suit properties are ancestral joint family properties of the plaintiff and defendants?
ii. Whether the defendants prove that the suit properties which are situated at KODLIWAD village within the jurisdiction of Soundatti taluka (i.e., item Nos.1 to 4 of the plaint 'A' schedule properties) are the self acquired properties of Kashawwa @ Mannawwa?
iii. Whether the defendants prove that Smt. Kashawwa @ Mannawwa executed a registered Will deed dated 29.04.2006 in respect of all the items of the plaint "A" schedule properties, infavour of the fifth -6- NC: 2025:KHC-D:581 RFA No. 100079 of 2015 defendant, on her own free will and wish when she was in sound disposing state of mind?
iv. Whether the court fee paid is insufficient?
v. To what share the parties are entitled?
vi. What decree or order?
6. The plaintiff has got examined herself as PW-1 and got examined two witnesses as PWs-2 and 3 and produced document as Exs.P-1 to P-20. The defendant No.1 herself is examined as DW-1 and other witnesses as DWs-2 to 6 and got marked documents as Exs.D-1 to D-18.
7. Upon appreciating the evidence on record, the trial Court has decreed the suit by granting 1/3rd share to the plaintiff in all the suit properties except in suit schedule item Nos.5 and 6. Likewise, defendant No.5 is entitled to 1/3rd share and defendant No.1 to 4 together entitled to 1/3rd share in all the suit properties except in suit schedule item Nos.5 and 6. Further, declared that the -7- NC: 2025:KHC-D:581 RFA No. 100079 of 2015 plaintiff and defendants are having an undivided right in item Nos.5 and 6 of the suit properties.
8. The trial Court has assigned reasons that the defendants have failed to prove due execution of Will dated 29.11.2006 and found that there are various suspicious circumstances regarding the Will. Therefore, disbelieved the evidence of the attesting witness DW-2 and also the evidence of DW6-Doctor. He had stated that Kashawwa was in sound state of mind. Therefore, by disbelieving the Will, has partitioned the suit schedule properties by decreeing the suit.
9. Being aggrieved by it, defendant Nos.1, 2, 3 and 4 have preferred the regular appeal by raising various grounds. The ground urged in that, Kashawwa had executed Will in favour of husband of defendant Nos.1 and 5 and therefore, suit schedule 'A' properties are not amenable for partition.
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10. Learned counsel for the appellants argued that the defendants have proved execution of Will by adducing evidence of attesting witness DW-2 and also proved the fact of Kashawwa that she was in sound state of mind by examining the Doctor-DW6. But these evidence are not appreciated properly by the trial Court. Therefore, argued that execution of Will is proved. Hence, prays to dismiss the suit by setting aside the judgment and decree passed by the trial Court.
11. Learned counsel for appellants in support of his arguments placed reliance on the judgment of Supreme Court in the case of Daulat Ram Vs Sodha and Others, reported in (2005) SC 233 (Daulat Ram Case).
12. On the other hand, learned counsel for respondents/plaintiffs justified the judgment and decree passed by the trial Court and thus prays to dismiss the appeal.
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13. Upon hearing the submissions of both sides, the points that arise for my consideration are as follows:
i. Whether, under the facts and circumstances involved in the case, the defendant Nos.1 to 5 prove that Kashawwa has executed registered Will dated 29.11.2006 by bequeathing plaint 'A' schedule properties in favour of deceased Basanagouda (husband of defendant No.1) and defendant No.5? ii. Whether, the judgment and decree passed by the trial Court requires interference by this Court?
14. The plaintiffs filed a suit for partition and separate possession claiming 1/3rd share in all the suit schedule properties by pleading that the suit schedule properties are ancestral and joint family properties.
15. In the counter claim, it is the case of the defendants that Kashawwa wife of Sidddanagouda had executed registered Will dated 29.11.2006 bequeathing the plaint and ancestral properties in favour of husband of defendant Nos.1 and 5. There is no evidence by the defendants that regarding Kashawwa had competency to
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 execute the Will in respect of the entire plaint 'A' schedule property. Admittedly, the schedule properties are tenanted lands, Kashawwa's mother was granted occupancy rights and after her death, Kashawwa inherited the suit properties. Therefore, Kashawwa did not have absolute right over the suit properties. When this being the fact, the question arises regarding competency of execution of Will by Kashawwa bequeathing entire property to male coparceners only, leaving the plaintiff who is the daughter. Ex.D-6 is the registered Will. Siddanagouda and Kashawwa had three children. The plaintiff is the daughter, husband of defendant No.1 namely, Basanagouda and defendant No.5 namely, Bhimagouda are sons. There is no stipulation as to why Kashawwa had excluded the daughter in bequeathing property only to sons. The plaintiff being daughter was excluded in the Will. This is revealed from Ex.D-6-Will.
16. DW-2 is one of the attesting witness. There is specific issue regarding proving of Will by the defendants.
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 The defendants are claiming that Kashawwa had executed the Will. Therefore, it is burden on the defendants to prove execution of Will as per principles of law laid down by the Hon'ble Apex Court in catena of decisions, few of them were to extract as under:
17. The Hon'ble Supreme Court in the judgment of H. VENKATACHALA IYENGAR APPELLANT Vs. B. N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443 at Para Nos.18, 19, 20 and 21 stipulates as under:
"18. 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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 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 Sections 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
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 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, Sections 59 and 63 of the Indian Succession Act are also relevant. 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 provision. 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 Section 63 of the Indian Succession Act, As in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied 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
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 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 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. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances above referre to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 English courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
18. Further, I place reliance on the judgment of Hon'ble Supreme Court in the case of JAGADISH CHAND SHARMA Vs. NARIAN SINGH SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2015) 8 SCC 612 at Para Nos.21 and 22 wherein it is held as under:
"21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the signature of such other
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 persons and that each of the witnesses has signed the will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1. In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence."
19. Further, I place reliance on the judgment of Hon'ble Apex Court in the case of N. KAMALAM (DEAD) AND ANOTHER Vs. AYYASAMY AND ANOTHER reported in (2001) 7 SCC 503 at Para Nos.1 and 3 wherein it is held as under:
"1. The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest:
to put it differently and in common parlance, it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills, 12th Edn., p. 129). This Court in the case of Girja Datt Singh v. Gangotri Datt Singh [AIR 1955 SC 346] held that two persons who had identified the testator at the time of registration of the will and had appended their
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 signatures at the foot of the endorsement by the Sub- Registrar, were not attesting witnesses as their signatures were not put animo attestandi. In an earlier decision of the Calcutta High Court in Abinash Chandra Bidyanidhi Bhattacharya v. Dasarath Malo [ILR (1929) 56 Cal 598 : AIR 1929 Cal 123] it was held that a person who had put his name under the word "scribe"
was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In a similar vein, the Privy Council in Shiam Sundar Singh v. Jagannath Singh [54 MLJ 43 : AIR 1927 PC 248] held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision of this Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons [(1969) 1 SCC 573 : (1969) 3 SCR 513] wherein this Court upon reference to Section 3 of the Transfer of Property Act has the following to state:
(AIR p. 1151, para 8) "It is to be noticed that the word 'attested', the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."
3. Turning on to the former expression onus probandi, it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested.
This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 equally well settled that in the event of there being circumstances surrounding the execution of the will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence."
20. Further, I place reliance on the judgment of this Court in the case of SRI. J. T. SURAPPA AND ANOTHER Vs. SRI SATCHIDHANANDENDRA SARASWATHI SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS reported in ILR 2008 KAR 2115 at Para Nos.23 and 24, which are extracted as under:
"23. There is one important feature which distinguishes wills from other documents. It is one of the most solemn document known to law. Through it, a dead man entrusts to the living, the carrying out of his wishes. As it is impossible, that he can be called either to deny his signature or to explain the circumstances in which it was made, it is essential that trust worthy and effectual evidence should be given to establish the Will. Therefore, unlike other documents, the Will speaks from the death of the testator. It is ambulatory and it becomes effective and irrevocable on the death of the testator. It is a declaration in the prescribed manner of the intention of the person making it, with regard to the matters which he wishes to take effect upon or after his death. Therefore, 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
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 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. However, in the case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the court could declare a document styled as "Will" is proved.
24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "PANCHAPADI". The path of enquiry and steps to be traversed are as under:--
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
(2) Whether the natural heirs have been disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?"
21. The word "Will" is defined under Section 2(h) of The Indian Succession Act, 1925 which reads as follows:
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 Section 2(h) in The Indian Succession Act, 1925 "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
(emphasis supplied by me)
22. The plaintiffs by getting amendment of the plaint, after filing written statement by the defendants, pleaded that the alleged Will is created and concocted one. Therefore, fundamentally it is burden on the defendants to prove execution of Will, thereafter the burden on the plaintiffs to prove the Will is created and fabricated one. Therefore, it is burden of the propounder to prove execution of the Will. Ex.D-6 is the registered Will. DW-2 is an advocate and attesting witness to the Will. It is his evidence that two days prior to the execution of Will in question, Kashawwa came to the office and requested to prepare a Will in respect of her self-acquired properties in favour of her sons only as the relationship between herself and plaintiff became strained. Further, DW-2 suggested
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 Kashawwa to get herself tested by a qualified doctor. Further stated that on 29.11.2006 Smt. Kashawwa along with two witnesses came to his office and doctor had stated in the presence of Smt.Kashawwa, himself and attesting witnesses that Kashawwa is in a sound state of mind. Therefore, as per instruction given by Smt.Kashawwa, he has noted down the points and certified Will in question. Thereafter, the Will was handed over to Kashawwa and after understanding the same, Kashawwa had put her left hand thumb impression and thereafter, witnesses have put their signature.
23. In cross examination of DW-2, it is revealed that he is not treated doctor to test Kashawwa physically regarding her health condition. DW-2 admitted in the cross-examination that DW6-doctor had telephoned to the DW-2. Further, admitted that DW-2 attesting witness and DW-6-doctor have not met each other before execution of Will. Therefore, it is admitted fact that at the time of alleged execution of Will, Kashawwa was about 80 years
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 old aged women. When evidence of DW-2 attesting witness is perused, he has stated that he had seen the DW-6 doctor who examined Kashawwa in his presence physically and told DW-2 that Kashawwa was in a sound state of mind, but the admissions in cross-examination proved different things as above stated which is correctly appreciated by the trial Court.
24. DW-6 is the doctor, he had stated in evidence that on 29.11.2006, he had tested Kashawwa in his clinic and issued certificate in this regard but as per evidence of DW-2, DW-5 and the attesting witness Kashawwa is holding medical certificate issued by DW-6 two days prior to the date of execution of the Will-Ex.D-6. This shows the active participation of the propounder of the Will. It was not possible for Kashawwa to go to DW-2 and bring DW-4 and 5 witnesses and also going to the doctor for getting certificate alone. Therefore, all the suggestions in the evidence revealed to prove that there was active participation of propounder of the Will.
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015
25. DW-5 is another attesting witness to Ex.D-6- Will. DW-5 has given evidence as per version of DW-2 and narrated the depositions to patch up the discrepancies found in the cross examination of DW-2. Therefore, when the evidence of DW-2, 5 and 6 are considered, there are various discrepancies found and proved to be the whole transaction is in unnatural way regarding the Will. DW-5 had stated that Kashawwa herself has given certificate. It is unbelievable for the reason that Kashawwa was old age lady of 80 years old and it is unbelievable fact that she went to DW-2 scribe and advocate and DW-5 attesting witness requesting him to act as attesting witness and DW6-doctor. Unless Kashawwa is accompanied by defendants, she could not do all these things alone. DW-2 and DW-6 are advocate and doctor respectively. The discrepancies found in their evidence cannot be ignored or brushed aside out rightly that there may be many discrepancies due to rustic nature of the witnesses. But DW-2 and DW-6 are advocate and doctor and therefore, the differences and discrepancies found in this regard as
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 above discussed are major one going to the very root of the issue regarding proving execution of Will. This is rightly considered by the trial Court.
26. DW-2 is advocate and the doctor/DW-6 attesting witness is the resident of the locality nearby the police station, where the sons of Kashawwa have resided. Further, Kashawwa was residing with her sons, who were working in the Police Department. DW-5 attesting witness is running transport business as it is revealed from his evidence, DW-2 being propounder of the Will and DW-3 is attesting witness and DW-6 doctor are residing in the same locality. When DW-5 attesting is running transport business, then, it is presumed that having close relationship with the police as sons of Kashawwa who were working in Police Department. Therefore, there are many chances of creating the Will.
27. Further, DW-1 who is defendant No.1 stated that Kashawwa had attacked with paralysis stroke to her left body prior to three years before execution of the Will. Therefore, when Kashawwa was suffering from paralysis attack to left
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 side of her body, then, it was not possible for herself to go the DW-2, DW-5 and DW-6 with regard to execution of will. When in the course of cross examination DW-2 and DW-3, it is revealed their ignorance regarding health condition of Kashawwa, when the left side body of the Kashawwa was attacked by paralysis stroke which can be easily seen, under these circumstances, it is unbelievable fact that Kashawwa herself went to DW-2 and DW-6 and requested for execution of will. Therefore, this proves active participation of propounder of Will/Ex.D-6 in this regard. The Trial Court has appreciated evidence on record and disbelieved execution of Will. In this way, the plaintiff has proved that the alleged Will is created and concocted one. The trial Court in this regard has appreciated evidence on record correctly and came to conclusion that there are various suspicious circumstances, which reveal about execution of Will and at the same time it is proved that the Will is created and concocted one.
28. Further, the defendants being propounder of Will have not proved that Kashawwa had intended to bequeath the property. Proving her intention is mental in nature and it
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 can be proved by circumstantial evidence, but that is not proved by the defendants. The plaintiff was excluded from bequeathing the property. There is no reason as to why the plaintiff was excluded except showing that the relationship of Kashawwa and the plaintiff was strained. Therefore, considering all these aspects, the Trial Court is correct in rejecting the case of the defendants that the Kashawwa had executed the Will.
29. Admittedly the suit schedule 'A' property is not the exclusive property of Kashawwa. Therefore with regard to competency also Kashawwa had no right to bequeath property entirely to her sons. All these aspects have been considered rightly by the Trial Court and by rejecting the case of the defendants has decreed the suit, which is found to be perfectly justified, legal and correct one. While discussing the above, the ratio laid down in Daulat Rao Case (supra) is also considered in this case.
30. The defendants have failed to prove the Will beyond suspicious circumstances and at the same time the plaintiff has proved that the alleged Will is created and
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NC: 2025:KHC-D:581 RFA No. 100079 of 2015 concocted one. Therefore, I answer point Nos.1 and 2 in the Negative. Hence, the appeal is found to be devoid of merits. Thus it is liable to be dismissed.
31. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is dismissed.
ii) The judgment and decree dated 29.11.2014 passed in O.S.No.323/2007 by the I Additional Senior Civil Judge, Gokak, is hereby confirmed.
iii) No order as to costs.
iv) Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE RKM:Para 1 to 25 SRA: Para 26 to end List No.: 1 Sl No.: 29