Karnataka High Court
Veerappa S/O. Shivappa Chetti vs Kalakappa on 3 March, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
®
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.397 OF 2005(DEC/INJ)
BETWEEN:
SRI. VEERAPPA
S/O SHIVAPPA CHETTI
AGE: 50 YEARS, OCC: AGRICULTURE
R/O BINNAL, TQ: YELBURGA
DIST: KOPPAL
REPRESENTED BY HIS P.A. HOLDER
SRI. FAKKIRAPPA
S/O KALLAPPA KITAGERI
AGE: 48 YEARS; OCC: AGRICULTURE
R/O BINNAL, TQ: YELBURGA
DIST: KOPPAL.
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
1A. SMT. NINGAVVA
W/O LATE VEERAPPA CHETTI
AGE: 59 YEARS, OCC: HOUSE WIFE
R/O YAREHANCHINAL VILLAGE,
TQ: YELBURGA, DIST: KOPPAL
1B. SMT. CHANNAVVA
W/O CHANNAPPA KITAGERI
AGE: 40 YEARS, OCC: HOUSE WIFE
2
R/O BINNAL
TQ: YELBURGA, DIST: KOPPAL
1C. SMT. SHANKRAVVA
W/O BASAVARAJ
AGE: 37 YEARS, OCC: HOUSE WIFE
R/O SOMAPUR
TQ: YELBURGA, DIST: KOPPAL
1D. SRI. KALAKAPPA
S/O LATE VEERAPPA CHETTI,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O YAREHANCHINAL,
TQ: YELBURGA, DIST: KOPPAL
1E. SRI. BASAVARAJ
S/O LATE VEERAPPA CHETTI
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O YAREHANCHINAL,
TQ: YELBURGA, DIST: KOPPAL
1F. SRI. SHANKRAPPA
S/O LATE VEERAPPA CHETTI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O YAREHANCHINAL,
TQ: YELBURGA, DIST: KOPPAL
... APPELLANTS
(BY SRI. ASHOK HOSUR, ADVOCATE FOR
SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND:
1. SRI. KALAKAPPA
S/O CHANNAPPA CHETTI
AGE: 46 YEARS, OCC: AGRICULTURE
R/O BINNAL
TQ: YELBURGA, DIST: KOPPAL
3
2. SMT. PARAMMA
W/O VIRUPAXAPPA GOUDAR
AGE: 53 YEARS,
OCC: AGRICULTURE
R/O MANAGALORE
TQ: YELBURGA DIST: KOPPAL
... RESPONDENTS
(BY SRI. NAGARAJ J. APPANNANAVAR, ADVOCATE FOR
SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR RESPONDENT
NO.1;
RESPONDENT NO.2 SERVED AND REMAINED
UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE AGAINST THE JUDGMENT & DECREE
DATED 12.10.2004 PASSED IN R.A.NO.57/2004 ON THE FILE
OF THE DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-
II, KOPPAL, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 27.03.2001 PASSED
IN O.S.NO.87/1992 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), YELBURGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.12.2019 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by the plaintiff in OS No.87/1992 feeling aggrieved by the Judgment and Decree passed by the First Appellate Court {Civil Judge (Sr.Dn. at Koppal)} in RA No.57/2004 dated 12.10.2004, 4 by which the First Appellate Court reversed the Judgment and Decree dated 27.03.2001 passed in OS No.87/1992.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant herein was the plaintiff, while the respondents herein were the defendants before the Trial Court.
3. The plaint averments reveal that the suit property bearing Sy.No.37/A measuring 1 acre 18 guntas was originally owned and possessed by Kalakavva who had inherited the said property from her father. The said Kalakavva was the maternal aunt of the plaintiff. The plaintiff claimed that Kalakavva had executed a Will dated 10.05.1984 in favour of the plaintiff bequeathing the suit property. During her lifetime, Kalakavva gave a vardi to enter the name of the plaintiff in the revenue records pursuant to which the name of the plaintiff was entered as "Paschat Maalik". Further, it is claimed that after the death of Kalakavva, the plaintiff became the full and 5 absolute owner of the suit property as the legatee under the registered Will and that he was in actual possession and enjoyment of the suit property. Further, he claimed that the defendant had no right, title or interest in the suit land. It is stated that after the death of Kalakavva and after she gave vardi to the village Office of Binnal village, the defendant had illegally succeeded in getting his name entered in the revenue records in collusion with the village office and thereafter the defendant No.1 sold the suit property to the defendant No.2. Further, a suit was filed by defendant No.1 in OS No.73/1992 for declaration of his title and for perpetual injunction against Channabasappa concerning the suit property. The said Channabasappa managed to get the said suit disposed of by a compromise decree. Thus, the plaintiff claiming to be the legatee of Kalakavva, filed the present suit for declaration of his title to the suit property and for perpetual injunction. Alternatively, he also claimed the relief of recovery of possession of the suit property from the defendants, if the 6 Court found that the plaintiff was not in possession of the same.
4. The defendant No.1 who had already sold the suit property to the defendant No.2 did not file his written statement.
5. The defendant No.2 filed his written statement and contended that the defendant No.1 and Kalakavva jointly owned the suit property and that after the death of Kalakavva, the defendant No.1 for legal necessity, sold the suit property to the defendant No.2. The defendant No.2 denied the alleged execution of the Will. He further contended that the plaintiff had unauthorizedly attempted to get his name entered in the revenue records during the lifetime of Kalakavva based on the said Will, which was a strong suspicious circumstance. He therefore, contended that the said Will propounded by the plaintiff was bogus and illegal.
7
6. The defendant No.3 also filed a written statement denying the assertions made in the plaint.
7. Based on the above, the Trial Court framed the following issues.
"1. Whether the plaintiff proves that, deceased Smt.Kalakawwa was the absolute owner and possessor of suit land?
2. Whether the plaintiff proves that, deceased Smt. Kalakawwa bequeathed the suit land in his favour by executing a Regd. Will Deed, Dt: 10-5-84?
3. Whether the plaintiff further proves that, he become the owner and possessor of suit land, soon after the death of Kalakawwa?
4. Whether the plaintiff further proves that, he is lawful possessor and enjoyment of suit land as on date of the suit?
5. Whether the plaintiff alternatively proves that, he inherited the suit land by way of succession?
6. Whether the defendant No.2 proves that, defendant No.1 being the absolute owner sold 8 the suit land in his favour, under Registered Sale Deed?
7. Whether the suit is not maintainable, as prematured one?
ADDL. ISSUE:
"Whether the defendant No.3 proves that, she is the nearest heir to the deceased Kalakawwa?"
8. Whether the plaintiff is entitle for the relief claimed?
9. What order or Decree?"
8. Before the Trial Court, the plaintiff was examined as PW1 and he examined PW2 who was the attesting witness and another witness PW3 and he marked Exs.P1 to P34. While the defendant No.2 was examined as DW1 and two witnesses were examined as DWs.2 and 3 and they marked Ex.D1.
9. The Trial Court based on the available evidence held that the plaintiff had proved the lawful execution of the Will and thus decreed the suit.9
10. The defendant No.2 aggrieved by the aforesaid Judgment and Decree of the Trial Court, filed RA No.24/2001 which was later renumbered as RA No.57/2004 before the Civil Judge (Sr.Dn.) at Koppal.
The First Appellate Court summoned the record, perused the documents and Judgment and Decree of the Trial Court, framed points for consideration and thereafter in terms of its Judgment and Decree dated 12.10.2004 allowed the appeal and dismissed the suit filed by the plaintiff.
11. The plaintiff feeling aggrieved by the aforesaid Judgment and Decree of the First Appellate Court in RA No.57/2004 has filed the present second appeal.
12. This appeal was admitted by this Court on 08.07.2005 and the following substantial question of law was framed.
"Whether the First Appellate Court having held that the will is not proved, was justified in allowing 10 the appeal and dismissing the suit, without considering the alternative prayer of the plaintiff that he is entitled to succeed to the property of Smt. Kalakavva, as her brother?"
13. The First Appellate Court has reversed the Judgment and Decree of the Trial Court by which the Trial Court had declared that the plaintiff had proved the lawful execution of a bequeath. Therefore, bearing in mind the implication of Order XLII of Code of Civil Procedure, I have felt it appropriate to delve at length, the oral and documentary evidence that led the First Appellate Court to reverse the Judgment and Decree of the Trial Court. I have heard the counsel for the appellant, respondent and I have perused the records of the Trial Court and First Appellate Court and the respective Judgments and Decrees passed by them. I have also carefully considered the grounds urged in the memorandum of appeal.
14. The facts that are not in dispute are that
(a) Kalakavva was the absolute owner of the suit property, 11 she having derived it from her parents (b) the plaintiff was the nephew of said Kalakavva (c) that the name of the plaintiff was entered in the revenue records during the lifetime of Kalakavva which was based on a Will executed by Kalakavva (d) that Kalakavva was aged 60 years as on 10.05.1984 (e) that Kalakavva was not formally educated and did not know to write her name (f) that the defendant No.1 was the husband of Kalakavva and they had no children (g) that defendant No.1 had got his name entered in the revenue records after the death of Kalakavva on 20.04.1989 (h) that he had filed a suit for declaration of title and injunction in O.S.No.73/1992 against Channabasappa which was compromised
(i) that the defendant No.1 sold the suit property to the defendant No.2 on 23.01.1993.
15. The dispute essentially is as to whether Kalakavva had executed a Will dated 10.05.1984 (Ex.P.4) in favour of the plaintiff in respect of the suit property. 12
16. The documents which are relevant and pertinent for the determination of the present suit are Exs.P1, P4, P6, P7, P8, P9, P10, P11, P17, P18, P31, P32, P33 and P34. The other documents marked by the plaintiff are inconsequential as they are all revenue documents that are brought about pursuant to Ex.P4.
17. The plaintiff who was the beneficiary of the Will (Ex.P4) did not enter the witness box but instead he authorized his brother-in-law to depose as PW1, in terms of the Power of Attorney at Ex.P1. There is no reason assigned as to why the plaintiff chose not to testify before the Court. A reading of the power of attorney at Ex.P1 executed by the plaintiff authorizing PW1 to adduce evidence does not disclose any reason that justifies the plaintiff in not testifying before the Court and PW1 in his evidence deposed that plaintiff was fit and fine. Thus, an adverse inference has to be drawn against the plaintiff that the case set up is incorrect.
13
18. The Apex Court in Vidhyadhar v. Manikrao (1999) 3 SCC 573 reiterated the following well- recognised legal position "17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross- examined by the other side, a presumption would arise that the case set up by him is not correct...."
19. Thus the evidence of PW1 has to be examined microscopically as he could be either planted by the plaintiff or PW1 may have imposed himself upon the plaintiff, owing to his relationship with the plaintiff or he may have portrayed to possess better legal acumen to prosecute the suit. This is so since PW1 claimed that he was also present at the time when the Will (Ex.P4) was executed but he had not signed the Will as he was just 23 to 24 years old then. However, it is seen from Ex.P1, Exs.P17, P18, P31, P33 and P34 that the plaintiff had affixed his left hand thumb mark which gives an 14 impression that some one else other than the plaintiff has indulged in a proxy litigation.
20. PW1 in his chief examination stated that the original Will was lost and therefore, a photocopy of the original Will was marked as Ex.P6. When PW1 was cross examined he stated as follows:
"ªÁ¢ £À£Àß CPÀÌ£À UÀAqÀ EzÀÄÝ ªÁ¢UÉ PÀ¼ÀPÀªÀé CvÉÛAiÀiÁUÀÄwÛzÀݼÀÄ. DzÀÝjAzÀ CªÀ¼ÄÀ £À£ÀUÉ CªÀÄä£ÁUÀÄwÛzÀݼÀÄ. ªÁ¢AiÀÄ ¯UÀߪÁUÀĪÀ ªÀÄÄAZÉAiÀÄÆ ¸ÀºÁ ªÁ¢ £ÀªÀÄä ªÀÄ£ÉvÀ£ÀPÉÌ ºÀ¼ÉAiÀÄ ¸ÀA§A¢üPÀ£ÁUÀÄwÛzÝÀ £ÄÀ . £À£ßÀ ªÀÄ£ÉAiÀÄ ºÉ¸ÀgÀÄ ºÁUÀÆ ªÁ¢AiÀÄ ªÀÄ£ÉAiÀÄ ºÉ¸ÀgÄÀ MAzÉà EgÀÄvÀÛzÉ. £ÀªÀÄä ¥ÀƪÀðdÓgÀ PÁ®¢AzÀ®Æ ¸ÀA§A¢üPÀgÄÀ DUÀÄwÛzÝÉ ÃªÀÅ. 1£Éà ¥ÀæwªÁ¢UÉ JµÀÄÖ d£À CPÀÌ vÀAVAiÀÄgÀÆ EgÀÄvÁÛgÉ JAzÀgÉ ªÀiÁ»w EgÀĪÀÅ¢¯Áè. PÀ¼ÀPÀªÀé½UÀÆ JµÀÄÖ d£À CPÀÌ vÀAVAiÀÄgÀÆ EgÀÄvÁÛgÉ JA§ÄzÀÄ ¸ÀºÀ ªÀiÁ»w EgÀĪÀÅ¢®è. PÀ¼ÀPÀªÀé½UÀÆ CtÚ vÀªÄÀ äA¢gÀgÄÀ E¢ÝgÀ°¯Áè. PÀ¼ÀPÀªéÀ¼À vÀAzÉUÉ JµÀÄÖ d£À CtÚ vÀªÄÀ äA¢gÀgÄÀ UÉÆwÛgÄÀ ªÀÅ¢¯Áè. £À£ÀUÉ PÀ¼ÀPÀªÀé ªÀÄ£ÉvÀ£ÀzÀ §UÉÎ AiÀiÁªÀÅzÉà ªÀiÁ»w EgÀĪÀÅ¢¯Áè JAzÀgÉ ¸ÀļÀÄî."15
21. He further deposed;
"ªÁ¢ AiÀÄgÉúÀAa£Á¼À UÁæªÄÀ zÀ°è EgÀÄvÁÛ£É. CªÀ£ÀÄ DgÁªÀÄ EgÀÄvÁÛ£É. PÀ¼ÀPÀªéÀ ©ü£Áß¼À UÁæªÀÄzÀ°è EgÀÄwÛzÀݼÀÄ. PÀ¼ÀPÀªéÀ ºÁUÀÆ DPÉAiÀÄ UÀAqÀ PÀÆrAiÉÄà EgÀÄwÛzÁÝUÀ vÀ£ÀUÉ CqÀZÀuÉ §A¢zÀÝjAzÀ PÀ¼ÀPÀªÀé zÁªÉAiÀÄ d«ÄãÀÄ ¸ÀªÉð £ÀA. ¥ÉÊQ vÀ£ßÀ CzsÀð D¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrzÀݼÀÄ JAzÀgÉ ¸ÀļÀÄî. PÀ¼ÀPÀªÀé ªÀÄÈvÀªÁUÀĪÀªÀgÉUÀÆ ºÁUÀÆ £ÀAvÀgÀ CªÀ¼À UÀAqÀ vÀªÄÀ ä G¥ÀfêÀ£ÀªÀ£ÄÀ ß zÁªÉAiÀÄ d«ÄãÀÄ¢AzÀ¯Éà ¸ÁV¸ÀÄwÛzÝÀ gÄÀ ."
22. In so far as the execution of the Will, PW1 stated as follows:
"PÀ¼ÀPÀªÀé ºÁUÀÆ DPÉAiÀÄ UÀAqÀ PÀÆrAiÉÄà EgÀÄwÛzÁÝUÀ vÀ£ÀUÉ CqÀZÀuÉ §A¢zÀÝjAzÀ PÀ¼ÀPÀªéÀ zÁªÉAiÀÄ d«ÄãÀÄ ¸ÀªÉð £ÀA. ¥ÉÊQ vÀ£ßÀ CzsÀð D¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁrzÀݼÀÄ JAzÀgÉ ¸ÀļÀÄî."
"PÀ¼ÀPÀªÀé ªÀÄÈvÀªÁUÀĪÀªÀgÉUÆ À ºÁUÀÆ £ÀAvÀgÀ CªÀ¼À UÀAqÀ vÀªÀÄä G¥ÀfêÀ£ÀªÀ£ÄÀ ß zÁªÉAiÀÄ d«ÄãÀÄ¢AzÀ¯Éà ¸ÁV¸ÀÄwÛzÀÝgÀÄ"16
23. He also deposed;
"ªÀÄÈvÀÄå ¥ÀvÀæ DUÀĪÀ PÁ®PÉÌ £Á£ÀÄ ºÁdgÀ EgÀ°¯Áè CAzÀgÉ £Á£ÀÄ CzÀPÌÉ ¸À» ºÁQgÀĪÀÅ¢¯Áè. £Á£ÀÄ PÀ¼ÀPÀªÀé¼À£ÀÄß MvÁÛAiÀÄ¥ÀƪÀðPÀªÁV £ÉÆÃAzÀt PÀbÉÃjUÉ PÀgÉzÀÄPÉÆAqÀÄ §A¢gÀ°¯Áè. D ¢£À ªÁ¢ 1£Éà ¥ÀæwªÁ¢ PÀ¼ÀPÀªÀé ºÁUÀÆ ¸ÁQëzÁgÀ CAzÀgÉ ªÀÄ®è¥àÀ «ÃgÀ¨sÀzÀæ¥Àà ²ªÀªÀÄÆvÉð¥Àà, ºÁUÀÆ §¸Àì¥àÀ J£ÀÄߪÀªÀgÄÀ ºÁdgÀ EzÀÝgÀÄ. ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÀt PÀbÉÃjAiÀÄ ªÀÄÄAzÀÄUÀqÉ §gÉAiÀįÁ¬ÄvÀÄ. PÀ¼ÀPÀªÀé ªÀiÁrzÀ ªÉÄÃ¯É ¸À»AiÀÄ£ÀÄß ¸ÁQëzÁgÀgÁzÀ ªÀÄ®è¥àÀ, «ÃgÀ¨ÀszæÀ¥àÀ, §¸Àì¥àÀ ²ªÀªÉÆvÉð¥Áà PÀæªÀĪÁV ¸À» ªÀiÁrzÀgÄÀ . £ÀAvÀgÀ §gÉzÀªÀgÀÄ ¸À» ªÀiÁrzÀgÀÄ. PÀ¼ÀPÀªéÀ ºÁUÀÆ ªÁ¢ £À£ÀUÉ ¸ÀA§A¢üPÀgÀÄ DzÀÄzÀÝjAzÀ CªÀgÀ ¸ÀAUÀqÀ £Á£ÀÄ ¸ÀºÀ §A¢zÉÝãÀÄ. £Á£ÀÄ »jAiÀÄ£À®èªÁzÀÝjAzÀ ªÀÄÈvÀÄå ¥ÀvÀæPÉÌ ¸À» ªÀiÁqÀ°¯Áè. D PÁ®PÉÌ £À£ÀUÉ CAzÁdÄ 23, 24 ªÀµÀðUÀ¼ÄÀ £ÀqÉAiÀÄÄwÛzÀݪÀÅ. DUÀ 1£Éà ¥ÀæwªÁ¢UÉ CAzÁdÄ 60, 65 ªÀµÀðUÀ¼ÀÄ £ÀqÉAiÀÄÄwÛgÀ§ºÀÄzÀÄ. PÀ¼ÀPÀªéÀ½UÉ CAzÁdÄ 60-65 ªÀµÀðUÀ¼ÀÄ £ÀqÉAiÀÄÄwÛgÀ§ºÀÄzÀÄ."
"PÀ¼ÀPÀªÀé ºÁUÀÆ ¸ÁQëzÁgÀgÄÀ £ÉÆÃAzÀtÂÃPÁjUÀ¼À ªÀÄÄAzÉ vÀªÀÄä ¸À» ºÁQzÀgÀÄ. ªÀÄÈvÀÄå ¥ÀvÀæPÌÉ ¸ÀA§A¢ü¹zÀAvÉ £ÉÆÃAzÁuÁ¢üPÁjUÀ¼À ªÀÄÄAzÉ ¸À» 17 ºÁQzÀÝ£ÀÄß ©lÄÖ ªÀÄvÉÛà PÀ¼ÀPÀªéÀ ºÁUÀÆ ¸ÁQëzÁgÀgÀÄ ¸À» ºÁPÀ°¯Áè. ªÀÄÈvÀÄå ¥ÀvÀæ 10-00 gÀÆ¥Á¬Ä ¸ÁÖöåA¥ï PÁUÀzÀ ªÉÄÃ¯É §gÉAiÀįÁ¬ÄvÀÄ. F zÁªÉAiÀÄ°è ºÁdgÀ ¥Àr¹zÀ eÉgÁPïì ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÄÀ ß £Á£Éà eÉgÁPïì ªÀiÁr¹ £À£Àß ºÀwÛgÀ ElÄÖPÉÆArzÉÝ£ÀÄ. ¸À¢æ eÉgÁPïì ¥ÀæwAiÀÄ£ÀÄß ºÁdgÀ¥Àr¹ F zÁªÉà zÁR®Ä ªÀiÁqÀ¯Á¬ÄvÀÄ."
"£Á£ÀÄ ºÁdgÀÄ¥Àr¹zÀ eÉgÁPïì ¥ÀæwAiÀÄ ªÀÄÈvÀÄå ¥ÀvÀæ ªÀÄÆ® ªÀÄÈvÀÄå ¥ÀvÀæzÀ eÉgÁPïì ¥Àæw EgÀÄvÉÛ. £Á£Éà eÉgÁPïì ªÀiÁr¹zÉÝÃ."
"£Á£ÀÄ ªÁ¢ «ÃgÀ¥àÀ£À£ÄÀ ß ªÀÄÈvÀÄå ¥ÀvÀæzÀ C¸À®Ä PÁUÀzÀ PÉýzÁUÀ CªÀ£ÄÀ PÀ¼É¢zÉ CAvÁ ºÉýgÀÄvÁÛ£É. ªÁ¢ £À£ÀUÉ F zÁªÉà £ÀqɸÀ®Ä AiÀiÁªÀÅzÉà C¢üPÁgÀ ¥ÀvÀæ §gÉzÀÄPÉÆnÖgÀĪÀÅ¢¯Áè JAzÀgÉ ¸ÀļÀÄî. ªÁ¢ zÁªÉà zÁR®Ä ªÀiÁrgÀÀĪÀÅ¢¯Áè JAzÀgÉ ¸ÀļÀÄî. ªÀÄÈvÀ PÀ¼ÀPÀªéÀ ªÁ¢UÉ vÁ£ÀÄ ªÀÄÈvÀ£ÁzÀ £ÀAvÀgÀ vÀ£ßÀ D¹ÛUÀ¼ÀÄ ºÉÆÃUÀ¨ÉÃPÉAzÀÄ ªÀÄÈvÀÄå ¥ÀvæÀ §gÉzÄÀ PÉÆnÖgÄÀ vÁÛ¼É. ªÁ¢AiÀÄ ºÉ¸ÀgÀÄ PÀ¼ÀPÀªÀé fêÀAvÀ EzÁÝUÀ¯Éà d«ÄãÀÄzÀ ¥ÀºÀt ¥ÀwæPÉAiÀÄ£ÀÄß zÁR®Ä DVgÀÄvÀÛzÉ. PÀ¼ÀPÀªéÀ fêÀAvÀ EzÁÝUÀ zÁªÉÃAiÀÄ d«ÄãÀ£ÄÀ ß CªÀ¼Éà ¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÁݼÉ."18
"ªÀÄÈvÀ PÀ¼ÀPÀªÀé½UÉ vÁ£ÀÄ ªÀÄÈvÀ£ÁzÀ £ÀAvÀgÀ d«ÄãÀÄ ªÁ¢UÉ ºÉÆÃUÀ¨ÉÃPÀAvÁ EZÉÒ ºÉÆA¢zÀݼÄÀ . ªÀÄÈvÀÄå ¥ÀvÀæ DzÀ £ÀAvÀgÀ ªÁ¢AiÀÄ ºÉ¸ÀgÄÀ ¥ÀºÀt ¥ÀwæPÉAiÀÄ°è zÁR®Ä DVgÀÄvÀÛzÉ. CAzÀgÉ EvÀgÉà ºÀQÌ£À°è zÁR®Ä DVgÀÄvÀÛzÉ."
"vÀ£Àß UÀAqÀ£À£ÀÄß CªÀ£ÄÀ fêÀAvÀ EgÀĪÀªÀgÉUÀÆ ªÁ¢ £ÉÆÃrPÉÆAqÀÄ ºÉÆÃUÀ¨ÉÃPÀÄ CAvÁ PÀ¼ÀPÀªéÀ D ¢£À ªÁ¢UÉ ºÉýzÀݼÀÄ. FUÀ PÀ¼ÀPÀªÀé¼À UÀAqÀ ©£Áß¼ÀzÀ°èAiÉÄà EgÀÄvÁÛ£É. ¸À¢æ PÀ¼ÀPÀªéÀ¼À UÀAqÀ ªÀÄ®è¥àÀ CAzÀgÉ 1£Éà ¥ÀæwªÁ¢ zÁªÉà d«Ää£À ªÉÄÃ¯É G¥ÀfêÀ£À ªÀiÁqÀÄwÛzÀÝ£ÀÄ. zÁªÉà ºÁPÀĪÀ PÁ®PÉÌ 1£Éà ¥ÀæwªÁ¢UÉ ªÀAiÀĸÀÄì DVzÀÝjAzÀ zÀÄrAiÀÄĪÀ ±ÀQÛ E¢ÝgÀ°¯Áè. 1£Éà ¥ÀæwªÁ¢ zÁªÉà d«ÄãÀ£ÄÀ ß 2£Éà ¥ÀæwªÁ¢UÉ vÀ£Àß G¥ÀfêÀ£ÀPÁÌV ªÀiÁgÁl ªÀiÁrzÁÝ£Æ É Ã CxÀªÁ zÀÄgÀÄzÉÝñÀ¢AzÀ ªÀiÁgÁl ªÀiÁrzÁÝ£Æ É Ã ºÉüÀ®Ä §gÀĪÀÅ¢¯Áè."
24. PW2 who was the attesting witness to Ex.P4 the Will, and a purchaser of the house and the abutting property from Kalakavva in terms of the sale deed dated 10.05.1984 marked as Ex.P9, deposed as under: 19
"ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß PÀ¼ÀPÀªéÀ EªÀ¼ÄÀ AiÀÄ®§ÄUÁð vÀºÀ²Ã¯ÁÝgï PÀbÉÃjAiÀÄ ºÀwÛgÀ §gɬĹPÉÆnÖgÀÄvÁÛ¼É. ¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß ªÀĺÀªÄÀ äzÀ¸Á§ eÁ°ºÁ¼À J£ÀÄߪÀªÀgÀÄ §gÉ¢gÀÄvÁÛgÉ. ªÀÄÈvÀÄå ¥ÀvæÀªÀ£ÄÀ ß §gÉzÀ £ÀAvÀgÀ eÁ°ºÁ¼À EªÀgÀÄ PÀ¼ÀPÀªÀé½UÉ N¢ ºÉýzÀgÄÀ . D ¸ÀªÄÀ AiÀÄzÀ°è £Á£ÀÄ ¸ÀºÀ ºÁdjzÉÝ£ÀÄ. CzÀPÉÌ PÀ¼ÀPÀªéÀ §gÉ¢gÀĪÀ «µÀAiÀÄ ¸Àj¬ÄzÉ JAzÀÄ ºÉý vÀ£ßÀ ºÉ¨âÉnÖ£À ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀÄvÁÛ¼É. FUÀ vÉÆÃj¹gÀĪÀ ºÉ¨âÉnÖ£À UÀÄgÀÄvÀÄ PÀ¼ÀPÀªÀé¼ÀzÀÄ EgÀÄvÀÛzÉ. PÀ¼ÀPÀªéÀ ªÀÄÈvÀÄå ¥ÀvæÀ ªÀiÁrPÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è DPÉAiÀÄ UÀAqÀ CAzÀgÉ 1£Éà ¥ÀæwªÁ¢ ºÁdjzÀÝ£ÀÄ. CªÀ¤UÉ ªÀÄÈvÀÄå ¥ÀvæÀzÀ «µÀAiÀÄ ¥ÀÆtðªÁV ªÀiÁ»w E¢ÝvÀÄ. ªÀÄÈvÀÄå ¥ÀvæÀ §gÉzÄÀ PÉÆqÀĪÀ ªÉüÉAiÀÄ°è PÀ¼ÀPÀªÀé DgÉÆÃUÀå¢AzÀ EzÀݼÄÀ . CªÀ½UÉ ¥Áæ¥ÀAaPÀ w¼ÀĪÀ½PÉ E¢ÝvÀÄ. CzÉà ¢£À ªÀÄÈvÀ PÀ¼ÀPÀªéÀ vÀ£ßÀ MAzÀÄ RįÁè eÁUÉAiÀÄ£ÀÄß £À£ÀUÉ Rjâ PÉÆlÄÖ CzÀgÀ §UÉÎ Rjâ PÁUÀzÀ ªÀiÁrPÉÆnÖgÀÄvÁÛ¼É."
"PÀ¼ÀPÀªÀé ¸ÁAiÀÄĪÀªÀgÉUÀÆ vÀ£ßÀ UÀAqÀ£ÁzÀ 1£Éà ¥ÀæwªÁ¢AiÀÄ ªÀÄ£ÉAiÀÄ°èzÝÀ ¼ÄÀ . ªÁ¢AiÀÄÄ PÀ¼ÀPÀªÀé¼À fêÀAvÀ EgÀĪÁUÀ DPÉAiÀÄ ¥Á®£É - ¥ÉÆõÀuÉ ªÀiÁrgÀĪÀÅ¢¯Áè. PÀ¼ÀPÀªÀé¼ÀÄ ªÀÄÈvÀ ºÉÆA¢zÀ ªÉÄÃ¯É DPÉAiÀÄ D¹ÛAiÀÄ£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÉÄà £ÉÆÃqÀÄwÛzÝÀ £ÄÀ . PÀ¼ÀPÀªÀé¼ÀÄ ¸ÀvÀÛ ªÉÄÃ¯É G½zÀ d«ÄãÀÄ ºÁUÀÆ zÁªÁ d«ÄãÀ£ÄÀ ß 1£Éà ¥ÀæwªÁ¢ ¸ÁUÀÄ 20 ªÀiÁqÀÄwÛzÀÝ£ÀÄ. zÁªÁ d«ÄãÀ£ÀÄß 1£Éà ¥ÀæwªÁ¢AiÀÄÄ PÀ¼ÀPÀ¥Àà 2£Éà ¥ÀæwªÁ¢UÉ ªÀiÁgÁl ªÀiÁrgÀÄvÁÛ£É. £Á£ÀÄ ªÁ¢ ¥ÀgÀ ¸ÁQë ºÉüÀĪÁUÀ PÀ¼ÀPÀªÀé¼ÀÄ ¸ÀvÀÛ ªÉÄÃ¯É zÁªÁ d«ÄãÀÄ 1£Éà ¥ÀæwªÁ¢UÉ ºÉÆÃUÀ¨ÉÃPÉAzÀÄ ¸ÁQë ºÉýzÉÝãÉAzÀÄ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸Àj¬ÄzÉ. PÀ¼ÀPÀªÀé¼ÀÄ ¸ÁAiÀÄĪÀÅzÀQÌAvÀ ªÀÄÄAZÉ ªÀÄÈvÀÄå ¥ÀvæÀªÀ£ÄÀ ß ªÁ¢AiÀÄ ºÉ¸ÀjUÉ §gÉzÀÄ PÉÆnÖzÀݼÀÄ, FUÀ ¥ÀÄ£ÀB ºÉüÀĪÀÅzÉãÉAzÀgÉ £ÀªÄÀ UÉ HlPÉÌ E®èzÁUÀ K£ÁzÀgÀÆ vÉÆAzÀgÉ DzÀgÉ £ÀªÄÀ UÉ eÉÆÃ¥Á£À AiÀiÁgÀÄ ªÀiÁqÀÄvÁÛgÆ É Ã CªÀjUÉ ºÉÆÃUÀ¨ÉÃPÀÄ CAvÁ §gÉzÀÄPÉÆnÖzÝÀ ¼ÄÀ . PÀ¼ÀPÀªÀé¼ÀÄ fêÀAvÀ EgÀĪÁUÀ CªÀ½UÉ AiÀiÁªÀÅzÉà HlzÀ vÉÆAzÀgÉ §A¢gÀĪÀÅ¢¯Áè."
"£Á£ÀÄ ¤±Á£É ¦.4gÀ ªÉÄÃ¯É vÀºÀ²Ã¯ÁÝgï PÀbÉÃjAiÀÄ DªÀgÀtzÀ°è ¸À» ªÀiÁrgÀÄvÉÛãÉ. ¨ÉÃgÉ J°èAiÀÄÆ ªÀiÁrgÀĪÀÅ¢¯Áè. PÀ¼ÀPÀªÀé¼ÀÄ PÀÆqÁ DªÀgÀtzÀ°èAiÉÄà ¸Àj ªÀiÁrgÀÄvÁÛ¼É. F DªÀgÀtzÀ°è £ÁªÀÅ ¸À» ªÀiÁrzÀÝ£ÄÀ ß ©lÄÖ ¨ÉÃgÉ PÀbÉÃjAiÀÄ°è ¸À» ªÀiÁrgÀĪÀÅ¢¯Áè. ¤±Á£É ¦.4 ªÀÄÈvÀÄå ¥ÀvÀæzÀ°è K£ÀÄ §gÉ¢zÉ £À£ÀUÉ UÉÆwÛ¯Áè. PÀ¼ÀPÀªÀé¼ÀÄ ªÀÄÈvÀÄå ¥ÀvÀæ ªÀiÁrPÉÆlÖ ¢£ÀzÀAzÉà £Á£ÀÄ ¨ÉÃgÉ ªÀÄ£ÉAiÀÄ £ÉÆAzÀtÂUÁV £ÉÆAzÀt PÀbÉÃjUÉ §A¢zÉÝãÀÄ. £Á£ÀÄ £ÉÆAzÀt PÀbÉÃjUÉ §gÀĪÀÅzÀQÌAvÀ ªÀÄÄAZÉ £À£ÀUÉ ªÀÄÈvÀÄå ¥ÀvæÀzÀ §UÉÎ AiÀiÁgÀÄ K£À£ÀÆß ºÉý¢Ý¯Áè. ¦.qÀ§Æèöå.1 AiÀÄgɺÀAa£Á¼À UÁæªÀÄzÀªÀ¤gÀÄvÁÛ£É. FUÀ ¸ÀzÀså CªÀ£ÀÄ ©£Áß¼À UÁæªÀÄzÀ°ègÀÄvÁÛ£É."21
25. PW3 is another witness who stated as follows:
" ¸ÀzÀj d«ÄãÀ£ÄÀ ß ªÁ¢UÉ PÀ¼ÀPÀªéÀ vÀ£ßÀ £ÀÄß ªÁ¢ eÉÆÃ¥Á£À ªÀiÁqÀÄvÁÛ£ÉAzÀÄ ªÀÄÈvÀÄå ¥ÀvæÀ ªÀiÁr PÉÆnÖzÁݼÉ. ªÀÄÈvÀÄå ¥ÀvÀæzÀ ¢£À £Á£ÀÄ ¸ÀºÀ ºÁdjzÉÝ£ÄÀ . ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß vÀºÀ²Ã¯ï PÀbÉÃjAiÀÄ DªÀgÀtzÀ°è PÀĽvÀÄ §gÉzÀgÄÀ . ªÀÄÈvÀÄå ¥ÀvÀæ §gÉAiÀÄĪÀ ¢£À PÀ¼ÀPÀªÀé £Á£ÀÄ, «ÃgÀ¨ÀszæÀ¥Àà §¸À¥Àà ZÀnÖ ²ªÀªÀÄÆvÉð¥Àà PÀA§½ ºÁUÀÆ 1£Éà ¥ÀæwªÁ¢ ºÁdjzÉݪÀÅ. £ÁªÀÅ ¸ÀºÀ CzÀPÌÉ §gÉƧj EzÉ CAvÁ ºÉý ¸À» ªÀiÁrgÀÄvÉÛêÉ. ªÀÄÈvÀÄå ¥ÀvÀæ §gÉzÀ £ÀAvÀgÀ J®ègÆ À PÀÆr G¥À-£ÉÆAzÀt C¢üPÁjUÀ¼À ºÀwÛgÀ ºÉÆÃV £ÉÆAzÀÄ ªÀiÁr¹zÀªÀÅ."
"1£Éà ¥ÀæwªÁ¢ PÀ¼ÀPÀªéÀ UÀAqÀ¤zÀÄÝ PÀ¼ÀPÀªÀé ¸ÁAiÀÄĪÀªÀgÉUÉ CªÀgÄÀ ©£Áß¼À UÁæªÄÀ zÀ°è PÀÆrAiÉÄà ªÁ¸ÀªÁVzÀÝgÀÄ. PÀ¼ÀPÀªéÀ¼ÄÀ fêÀAvÀ EzÁÝUÀ 1£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÀÄ£ÉAiÀÄ£ÀÄß £Àr¸ÀÄwÛzÀÝ£ÀÄ, ºÁUÀÆ PÀ¼ÀPÀªéÀ¼À ¥Á®£É - ¥ÉÆõÀuÉ ªÀiÁqÀÄwÛzÝÀ £ÄÀ . PÀ¼ÀPÀªéÀ ¸ÁAiÀÄĪÀªÀgÉUÆ À 1£Éà ¥ÀæwªÁ¢AiÉÄà eÉÆÃ¥Á£À ªÀiÁrgÀÄvÁÛ£É. FUÀ 1£Éà ¥ÀæwªÁ¢UÉ EgÀĪÀ D¹ÛAiÀÄÄ PÀ¼ÀPÀªÀé¼ÀzÀÄ EgÀÄvÀÛzÉ. FUÀ £À£ÀUÉ vÉÆÃj¹zÀ ¤±Á£É ¥À.4 gÀ°è £À£ßÀ ¸À» EgÀĪÀÅ¢®è."
"£Á£ÀÄ ¦.qÀ§Æè. 2 EªÀjUÉ §AiÀÄ®Ä eÁUÀ
RjâUÉ PÉÆqÀĪÀÅzÀgÀ ¸À®ÄªÁV £Á£ÀÄ ¸À¨ï-jf¸ÀÖgï
22
PÀbÉÃjUÉ §A¢zÉÝ£ÄÀ . ¸ÀzÀj ªÀÄÈvÀÄå ¥ÀvæÀzÀ°è K£ÀÄ
§gÉ¢zÁÝgÉÆà £À£ÀUÉ UÉÆwÛ¯Áè. £Á£ÀÄ ªÀÄÈvÀÄå ¥ÀvÀæPÉÌ ¸À¨ï-
gÉf¸ÀÖgï PÀbÉÃjAiÀÄ ºÉÆgÀUÀqÉ ¸À» ªÀiÁrzÉÝãÉ. £Á£ÀÄ AiÀiÁªÀÅzÉà PÀbÉÃjAiÀÄ M¼ÀUÀqÉ ºÉÆÃV ªÀÄÈvÀÄå ¥ÀvÀæPÉÌ ¸À» ªÀiÁrgÀĪÀÅ¢®è."
26. The counsel for the plaintiff argued that Kalakavva desired that the suit property should go back to her parental house since she had got the suit property from her parents and that therefore she had bequeathed the suit property to the plaintiff, who was her nephew. He also argued that the plaintiff had examined PW2 and proved the valid execution of the will. He urged that there were no suspicious circumstances that surrounded the execution of the will. He relied upon the following case laws to buttress his arguments;
(i) AIR 1995 SC 1684 (Rabindra Nath Mukherjee and another, Vs. Panchanan Banerjee (dead) by L.Rs and others.) 23
(ii) AIR 1995 SC 1685 (Ram Bhajan Singh and others Vs. Madheshwar Singh (Dead) by LRs. And others.)
(iii) AIR 1999 Madras 40 (S.Kaliyammal and others Vs. K.Palaniammal and others.)
(iv) AIR 1999 Madras 43 (D.Duraimurthy Vs. Chief Educational Officer Dharmapuri and others.)
(v) AIR 1999 Gauhati 53 (Damodhar Bordoloi Vs. Mrinalini Devi Trust Board and others.)
(vi) AIR 1999 Delhi 109 (Smt.Rani Devi Vs. Ashok Kumar Nagi and another)
(vii) AIR 1995 SCC 2086 (Vrindavanibai Sambhaji Mane Vs.Ramachandra Vithal Ganeshkar and others)
(viii) AIR 1985 SC 500 (Satya pal Gopal Das Vs.Smt.Panchubala Dasi and others)
(ix) AIR 1985 SC 504 (Raiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation and another)
(x) AIR 1995 SC 1852 (PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others) 24
(xi) ILR 1998 KAR 1554 (Sri Holiyappa Vs. The Deputy Tahasildar and Ors.)
(xii) ILR 1998 KAR 1422 (Indira Vs. Arumugam and another)
27. The Judgments relied upon by the plaintiff no doubt indicate the manner in which the execution of a Will should be held to be proved. It is now more than certain that the execution of the Will should not only be proved but the beneficiary will have to remove all the suspicious circumstances that surround the execution of the Will. The circumstances pleaded by the beneficiary should not be unnatural and should not shake the conscience of the Court.
28. On the other hand, the counsel for the defendant No.2 contended that the will was brought about under serious suspicious circumstances namely that Kalakavva and defendant No.1 were living together under the same roof till the death of Kalakavva. Thus there was 25 no animosity between them. Both of them were dependent on the suit property for their livelihood and therefore there was no reason as to why Kalakavva had dis-inherited the defendant No.1 from her legacy. He also contended that PW1 did not disclose any circumstance as to why defendant No.1 was dis-inherited. Further he contended that Kalakavva was illiterate and aged and taking advantage of the presence of Kalakavva at the office of the Sub-Registrar on 10.05.1984 for the execution of Ex.P9 in favour of PW2, the plaintiff who was related to Kalakavva had managed to concoct the will and got it registered at the office of the same sub-registrar on the same day when Ex.P9 was executed. He claimed that Ex-P4 was fabricated in the course of execution of the sale deed at Ex.P9 as the scribe and the attesting witness for both the sale deed (Ex.P9) and Will (Ex.P4) were one and the same. He further contended that the very circumstance in the plaintiff getting his name entered in the revenue records during the life time of Kalakavva, on the basis of an 26 alleged vardhi, made it apparent that the alleged will was not lawfully executed by Kalakavva. He also contended that the original will is not marked but was stated to be misplaced and that this made the testament all the more doubtful. Further he contended that PW2 was a planted witness who did not speak of he witnessing Kalakavva affixing her thumb impression to the will and that the evidence of PW1, PW2 and PW3 are contrary regarding the place of execution of the Will and that this was sufficient to prove that PW2 and PW3 had not seen Kalakavva bequeathing the property to the plaintiff in terms of Ex.P4.
29. The concept of testamentary disposition of one's own property is a mechanism in law for a person to decide the way his legacy should devolve. However, litigation in Courts by beneficiaries warring over properties based on such unprivileged wills have thrown up varied instances of fraud, one-upmanship, coercion, threats, misrepresentations, intimidations and pretentious good 27 Samaritans preying on precarious/ gullible individuals. We can only marvel at the ingenuity of human beings to calculatedly betray hapless and aged people of their property by doling out earthly pleasures or showering conditional/ pretentious love as consideration to obtain a legacy. Human experiences have therefore metamorphosed to prescribe constraints in law regarding the manner of proof of unprivileged Wills.
30. The Law regarding proof of execution of a Will is substantially well settled. It is not merely the lawful execution of the Will that has to be proved having regard to Section 68 of the Evidence Act by examining an attesting witness who had seen the executant affixing his mark on the Will but it is incumbent upon every beneficiary of an unprivileged Will to purge all suspicious circumstances that surround the execution of the will.
31. The Apex Court in the much often quoted Judgment reported in Thimmajamma's case had 28 thoughtfully held that suspicious circumstances are perceptions of the human mind depending upon the facts and circumstances of each case.
32. There has been an unending exposition of law as to how each testamentary disposition has to be scanned to check if there are any suspicious circumstances surrounding the execution of the testament. This is an inevitable exercise that has to resorted in every case where proof of a Will is required to be established, as the testator would not be around to testify the valid execution of a Will.
33. In so far as the due execution of the will in the present case is concerned, Ex.P4 is registered and it is attested by two witnesses and thus satisfies the requirement of Section 63 of the Indian Succession Act.
34. But in so far the lawful execution of the will is concerned, PW1 though claimed that he was present when 29 the will was executed, he had not attested the document. However, he claimed that the Will was executed on 10.05.1984 at 10.30 am., before the Sub-Registrar, Yelburga but PW2 asserted that the Will was executed outside the office of the Tahsildar while PW3 claimed that the Will was executed outside the office of the Sub- Registrar and that Kalakavva did not sign any document inside the office of the Sub-Registrar. PW1 in his chief examination did not utter that he saw Kalakavva affix her thumb mark to the Will. If PW1, PW2 and PW3 were at variance as to the place of execution of the Will, it has to be invariably held that PW2 had not seen Kalakavva signing the will and thus PW2 had not attested the thumb mark of Kalakavva.
35. Section 3 of the Transfer of Property Act defines "attested" as; "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom 30 has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
36. The plaintiff claimed to be privy to the execution of the Will and was the best person who could have stated the circumstances under which Kalakavva had executed the Will. He, staying away from the proceedings makes the attestation of the Will gloomier and murkier. Since none of the witnesses of the plaintiff have spoken of they having seen Kalakavva signing the Will (Ex- P4), I am convinced and do hold that the plaintiff has 31 failed to prove that the Will at Ex-P4 was lawfully executed by Kalakavva.
37. When the alleged will of Kalakavva is seen, it indicates that the plaintiff was his nephew and that he was looking after Kalakavva and out of love and affection and subject to plaintiff looking after the defendant No.1, the suit property was bequeathed to the plaintiff. Curiously, when PW1 and PW2 were cross examined, they deposed that the plaintiff was not looking after Kalakavva. PW2 claimed that after the death of Kalakavva, the defendant No.1 was looking after the suit property. PW1 came up with a new claim in his evidence that Kalakavva had bequeathed her property with an intention that the suit property should go back to her parents as she got it from her parents.
38. Noticeably, the execution of the Will is surrounded by the following suspicious circumstances; 32
(a) Kalakavva was illiterate and was managing her family.
(b) Kalakavva and the defendant No.1 were dependent on the suit property for their livelihood. If she had bequeathed suit property in anticipation of the plaintiff looking after defendant No.1, that indicates that she cared for the well being of defendant No.1. If that be so, how could the Will benefit the defendant No.1?
(c) There was no animosity between Kalakavva and the defendant No.1, so as to disinherit the defendant No.1 from succeeding to the suit property.
(d) The Will (Ex.P4) was brought about on the same day when the sale deed (Ex.P9) was 33 executed by Kalakavva in favour of PW2 and was registered before the same Sub-Registrar.
(e) The scribe, witnesses for both the sale deed (Ex.P9) in favour of PW2 and Will (Ex.P4) in favour of Plaintiff were common except that PW2 had also signed as an attestor.
(f) Even during the lifetime of Kalakavva the Khatha of the suit property was changed in the name of the plaintiff.
(g) It was claimed by PW1 that Kalakavva bequeathed the suit property to plaintiff since she wanted it to go to her parents family as she had derived it from her parents. However, the Will at Ex.P4 did not disclose it.
(h) Though, it is mentioned in Ex-P4 that plaintiff was looking after Kalakavva however, PW1 deposed that plaintiff never looked after 34 Kalakavva. PW2 deposed that plaintiff never looked after Kalakavva. On the other hand, PW2 claimed that defendant No.1 was looking after the suit property after the death of Kalakavva.
(i) Ex.P1, Ex.P31, P32, P33 and P34 show that the plaintiff was also not literate but the correspondence in Ex.P31, P32, P33 and P34 were managed by someone else.
39. The Plaintiff and his witnesses made no effort to explain the above suspicious circumstances. If these surrounding circumstances are pieced together, it would indicate that taking advantage of Kalakavva's illiteracy, Ex.P4 was brought about on the day when Kalakavva sold a property belonging to her in terms of Ex.P9 to PW2. Admittedly, plaintiff and PW1 were present on 10.05.1984 and it appears probable that they struck a deal with the scribe and the witnesses to bring about 35 Ex.P4, taking advantage of the illiteracy of Kalakavva. This is reinforced by the fact that even during the lifetime of Kalakavva, Plaintiff managed to get his name in the revenue records which indicates that the whole theory of Will is actually a well knit conspiracy to deprive Kalakavva and the defendant No.1 of the suit property.
40. The Apex Court in the case of Raj Kumari Vs. Surinder Pal Sharma reported in 2019 SCC Online SC 1747 held as follows:
"14. In H. Venkatachala Iyengar v.
B.N.Thimmajamma dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis-à-vis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed 36 testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on 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 mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect.
15. In Jaswant Kaur v. Amrit Kaur, it was held that suspicion generated by disinheritance is not removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state 37 of mind when the Will disinherits those like the wife and children of the testator who would have normally received their due share in the estate. At the same time, the testator may have his own reasons for excluding them. Therefore, it is obligatory for the propounder to remove all the legitimate suspicions before a Will is accepted as a valid last Will of the testator. Earlier, in Surendra Pal v. Dr. (Mrs.) Saraswati Arora, this Court had observed that the propounder should demonstrate that the Will was signed by the testator and at the relevant time, the testator was in a sound and disposing state of mind and had understood the nature and effect of the dispositions, that he had put his signature on the testimony of his own free will and at least two witnesses have attested the Will in his presence. However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting his property or where the disposition appears to be unnatural, improbable and unfair or where there are other reasons to doubt the testator's free will and mind.
The nature and quality of proof must commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, 38 entertain. Where coercion and fraud are alleged by an objector, the onus is on him to prove the same and on his failure, probate of the Will must necessarily be granted when it is established that the testator had full testamentary capacity and had in fact executed the Will with a free will and mind. In Rabindra Nath Mukherjee v. Panchanan Banerjee (Dead) by LRs, this Court had observed that the doubt would be less significant if the Will is registered and the Sub-Registrar certifies that the same was read over to the executor who, on doing so, had admitted the contents. In each case, the court must be satisfied as to the mandate and requirements of clause (c) to Section 63 of the Indian Succession Act."
41. The Apex Court in the case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others reported in (2008) 15 SCC 365 held as follows:
"20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also 39 pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.
42. In Anil Kak v. Kumari Sharada Raje it was opined: (SCC p.714, paras 52-55) "52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
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53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
43. In Babu Singh v. Ram Sahai, the Apex Court referred the law declared in Apoline D'Souza v. John D'Souza and B. Venkatamuni v. C.J. Ayodhya Ram Singh and held that "the question as to whether due attestation has been established or not will depend upon the fact situation in each case."
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44. The Apex Court in the case of Smt.Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another reported in (1982)1 SCC 20 held as follows:
"7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other 42 indications in the Will to show that the testator's mind was not free. In such a case 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. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations."
45. The Apex Court in the case of Prakash Soni Vs. Deepak Kumar and another reported in (2017) 9 SCC 332 held as follows:
"11. We find from the records that the condition of the testator's mind and body was very feeble and debilitated. The signature of the testator was allegedly taken on the death bed while she was administered drip. The dispositions made in the will may not be the result of the testator's free will and mind. In such cases, the Court would 43 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. Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator's free will and mind, the Civil Court as well as the High Court are not justified in coming to the conclusion that the will Ext.D/6 is duly executed by the deceased. The respondents being the propounders of the will have failed to satisfy the judicial conscience of this Court regarding due execution of the will. Since the suspicious circumstances relate to the genuineness of the signatures of the testator, as well as the condition of the testator's mind and the dispositions made in the will being unfair, the judgment of the High Court restoring the judgment of the Civil Court is liable to be set aside."44
46. The Apex Court in the case of S.R.Srinivasa and Others Vs. S.Padmavathamma reported in (2010) 5 SCC 274 held as follows:
"65. In Jaswant Kaur v. Amrit Kaur, this Court reiterated the principles governing the proof of a will which is alleged to be surrounded by suspicious circumstances. Chandrachud, J. speaking for the Court observed as follows: (SCC p.373, paras 8-9) "8. The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him.
Accordingly, the defendant ought to have led 45 satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh.
9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
47. The defendant No.1 after the death of Kalakavva had sold away the suit property to the defendant No.2 for lawful necessity and to meet his livelihood. DW1 has entered the witness box and he has deposed about the purchase of the suit property for 46 valuable consideration. He has also examined the other witnesses who have spoken that the possession of the suit property was with the defendant No.1.
48. The strong circumstance which goes against the plaintiff is that the plaintiff failed to enter the witness box and they had failed to produce the original Will. Having regard to the above, the plaintiff has utterly failed to prove the valid execution of the Will and had failed to purge all the suspicious circumstances surrounding the execution of the Will. The First Appellate Court rightfully appreciated the facts and circumstances of the case and allowed the appeal and dismissed the suit filed by the plaintiff.
49. In view of the aforesaid facts, the substantial question of law framed by this Court is answered in the negative. Since the defendant No.1 was the Class-I heir of deceased Kalakavva and therefore the plaintiff being 47 remote Class-II heir was not entitled to succeed to the suit property.
Hence, this Regular Second Appeal fails and is accordingly dismissed.
No order as to costs.
Sd/-
JUDGE GH