Karnataka High Court
Amita D/O Gurunath Deshpande vs Arvind S/O Shripad Deshpande on 30 August, 2019
Bench: G.Narendar, B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30th DAY OF AUGUST, 2019
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
REGULAR FIRST APPEAL NO. 100166 OF 2015
BETWEEN:
1. Smt. Amita
D/o. Gurunath Deshpande
Age: 51 years
Occ: VRS Rtd.
R/o. CTS No.279
Tilakwadi,
Belagavi - 590 006.
2. Smt. Neeta
W/o. Gurunath Deshpande
Age: 70 years
Occ: Household
R/o. CTS No.279
Tilakwadi,
Belagavi - 590 006.
3. Smt. Achala
D/o.Gurunath Deshpande
Age: 50 years
Occ: VRS Rtd.
R/o. CTS No.279
2
Tilakwadi,
Belagavi - 590 006.
4. Sri Mukund
S/o. Gurunath Deshpande
Age: 48 years
Occ: Pvt. Work
R/o. CTS No.279
Tilakwadi,
Belagavi - 590 006.
5. Smt. Madhuri
D/o. Gurunath Deshpande
W/o. Ajit Prabhu
Age: 40 years
Occ: Pvt. Work
R/o. CTS No.279
Tilakwadi,
Belagavi - 590 006.
Note: Appellant No.1 is the
GPA holder of appellant Nos. 2 to 5.
... Appellants
(By Sri Anant Mandagi, Sr. Counsel for
Sri B. Chidanand, Adv.)
AND:
1. Sri Arvind
S/o. Shripad Deshpande
Age: 70 years
Occ: Business
R/o. CTS No.433, Congress Road
Tilakwadi,
Belagavi - 590 006.
3
2. Sri Vilas
S/o. Shripad Deshpande
Age: 67 years
Occ: Retd.
R/o. Plot No.200 in Sy.No.17
Chidambar Nagar,
Belagavi- 590 006.
3. Sri Amit
S/o. Vishwanath Deshpande
Age: 38 years
Occ: Business
R/o. CTS No.433, Congress Road
Tilakwadi,
Belagavi - 590 006.
... Respondents
(By Sri M.G. Naganuri, Adv., for R.1 and R.3;
Sri Sangram S. Kulkarni, Adv., for C/R.2)
This Regular First Appeal is filed under Section 96 read
with 41 Rule 1 of CPC against the judgement and decree
dated 31.03.2015 passed in O.S.No.3/2010 on the file of the I
Additional District Judge, Belagavi, dismissing the suit filed
for grant of probate certificate.
This appeal having been heard and reserved on
29.08.2018 and coming on for pronouncement of Judgment
this day, B.M. SHYAM PRASAD J., delivered the following:
4
JUDGEMENT
This appeal is by the plaintiff in O.S. No.3/2010 on the file of the I Additional District Judge, Belagavi (for short, 'Civil Court', which is dismissed by the Civil Court by the impugned judgement. As such, this first appeal.
2. The appellant filed a petition under section 276 of the Indian Succession Act, 1925 for grant of Probate Certificate in respect of the Will dated 24.1.2002 (registered as Document No. BK-III-144/2001-2002) executed by Ms. Gulab Sripad Deshpande stating that this Will dated 24.1.2002 was produced in a civil suit in OS No.80/2000, a proceeding initiated by Ms. Gulab Sripad Deshpande for partition and declaration as detailed later on in this judgement. The respondent Nos.1 to 4 did not contest the petition. However, the respondent No. 5 to 7 came on record and chose to contest the petition. Therefore, the petition was registered as a suit in OS No. 3/2010, which is dismissed by the civil Court.
5
3. The appellant's case is that Ms Gulab Sripad Deshpande is her father's sister. Her father died in the year 1974. The appellant, her brother and sisters were educated by her aunt, Ms. Gulab Sripad Deshpande, who was not only residing in a part of the property bearing CTS No. 279, 1st Railway Gate, Tilakwadi, Belgaum but had also rented out other premises in this property. Ms Gulab Sripad Deshpande was afflicted with leprosy in her childhood, but she was cured entirely. However, Ms Gulab Sripad Deshpande remained a spinster and died on 6.1.2007.
4. The appellant's grandfather, Mr. Sripad Rao was married to Ms. Lakshmi Bai as well as the appellant's grandmother, Mrs. Chandrabhaga Bai. The appellant's grandmother, Chandrabhaga Bai had three children viz., the appellant's father Mr. Sham @ Gurunath Deshpande, Ms Gulab Sripad Deshpande and Mrs. Sindhu, who died also died a spinster. Therefore, the appellant's family and Ms Gulab Sripad Deshpande stayed together. The respondent no 6 1 to 4 are the appellant's mother and her siblings, and the other respondents are either her step brothers or their respective legal heirs. The Genealogy asserted by the appellant is as follows:
Mr. Yashwantha Rao Mr. Sripada Mr. Mr. Vasudeva Rao Rao Kashinath Mrs. Lakshmi Bai [1st wife] Mrs. Chandrabhaga Bai Mr. Dinakar Ms. Lata -
@ Dinanah Shyam
Wife
@ Gurunath Nita - Wife [R 1]
Mr. Sandeep
Mr. Sandhya Gulabi Ms. Anitha [P]
Testatrix Ms.Achala [R 2]
Mr.
Ms. Jyothi Sindhu Ms.Madhuri [R 3]
Vishwanath
Ms. Swathi Ms.Mukund [R4]
Ms. Deepa
Mr. Amit [R 7]
Mr. Arun Sripad Deshpande [R 5]
Mr. Vilas Sripad Deshpande [R 6]
Ms. Padma
Ms. Pushpa
7
5. The appellant has asserted that Ms Gulab Sripad Deshpande, who died on 6.1.2007, has executed and registered the Will dated 24.1.2002 (referred to as 'the Will dated 24.1.2002') bequeathing all her right, title and interest in the different immovable properties in her favour and in favour of her mother and siblings (the respondent Nos.1-4).
The properties referred to in the Will dated 24.01.2002 are as follows:
(i) CTS No. 279, 1st Railway Gate, Tilakwadi, Belgaum,
(ii) CTS No. 433, Congress Road, Belgaum,
(iii) 17/A/1, Chidambar Nagar, Belgaum,
(iv) Plots in 17, Chidambar Nagar, Belgaum, and;
(iv) Survey No. 55/1, Kangrali, Belgaum.
6. Initially, only the appellant's mother and her siblings were arrayed as parties. These respondents filed Memo dated 6.9.2007 stating that they had no objection for allowing the petition. However, on the publication of citation 8 of the petition, the respondent Nos.6 to 7 (referred to as, 'the contesting respondents') filed their respective application/objections to come on record as respondents. The civil Court on 4.3.2008, allowed the application filed by these respondents, and they were permitted to come on record.
7. The contesting respondents resisted the grant of probate as prayed for by the appellant on multiple grounds. They contended that Ms. Gulab Sripad Deshpande suffered from leprosy from her childhood. Though she received treatment, she was not cured entirely. The affliction recurred in 1985, and she was under constant treatment, and sometimes as an inpatient in Bangalore. Ms Gulab Sripad Deshpande's fingers were affected and disfigured, and she could neither sign or affix her Left Thumb Mark (LTM). Ms Gulab Sripad Deshpande was neither physically nor mentally in a sound state of mind to execute the Will dated 24.1.2002. 9
8. The contesting respondents also contended that Ms Gulab Shripad Deshpande had earlier executed another Will dated 30.10.1993, but this was not cancelled. Further, the contesting respondents asserted that Ms Gulab Shripad Deshpande did not have any right in the properties referred to in the Will dated 24.1.2002 and therefore she could not have executed the Will dated 24.1.2002. Even otherwise, Ms Gulab Shripad Deshpande could not have executed the Will dated 24.1.2002 because she was contending that she was a member of the Hindu joint family: if Ms Gulab Sripad Deshpande was a member of a joint family she could not have executed the Will dated 24.1.2002 while the family remained undivided. Therefore, the Will dated 24.1.2002 is void.
9. It is undisputed that Ms. Gulab Sripad Deshpande has filed a suit in OS No.80/2000 for partition of the properties most of which are subject matter of the Will dated 24.1.2002. All the legal representatives of her stepbrothers viz., Mr. Dinanath Deshpande and Mr. Vishwanath 10 Deshpande, and her stepsister, Mrs. Pushpa are parties in this suit. Further, Ms Gulab Sripad Deshpande, represented by the appellant as her power of attorney, has also filed another suit in OS No. 82/2004 for declaration of title to property bearing CTS No. 279, Tilakwadi, Belgaum and for other consequential relief. The decision in this suit in OS No. 82/2004 is deferred, subject to the outcome of the present proceedings in view of the orders of this Court in W.P.No.67211/2010 on 9.11.2011.
10. Similarly, it is undisputed that on 23.6.2005, Ms. Gulab Sripad Deshpande filed an application in O.S. No.80/2000 under Order VII Rule 14 read with section 151 of CPC (IA No. 20) seeking permission to produce the Will dated 24.1.2002 and also prayed for keeping this document in safe custody. But, it is seen from the records that the contesting respondents resisted this application only on the ground that Ms Gulab Sripad Deshpande did not have any rights in the properties referred to in the Will dated 24.1.2002, and on the 11 ground that because Ms Gulab Sripad Deshpande was asserting that some of the properties were joint family properties and she was a member of such joint family, she could not have executed the Will dated 24.1.2002. The contesting respondents did not resist the application either on the ground that Ms Gulab Sripad Deshpande was neither mentally nor physically in a position to execute the Will dated 24.1.2002 or that it was not duly executed and attested as required in law.
11. On 28.6.2005, the civil Court allowed the application and ordered that this Will dated 24.1.2002 be kept in safe custody. This order remained unchallenged. Further, the civil Court in the present proceedings viz., 3/2010 vide its order dated 23.4.2011 summoned the entire records in OS No. 80/2000.
12. In the present proceedings the civil Court on 7.6.2009, framed the following Issues:
12
i) Does the plaintiff prove that Kumari Gulab Sripad Deshpande executed, registered Will dated 24.1.2001 (sic) in respect of the suit property while in sound and disposing state of mind?
ii) Is the plaintiff entitled for grant of probate of the said Will, in respect of the suit property?
iii) What decree or order?
13. The appellant has examined herself as PW-1, and she has examined Mr. Gopal A Kamate (an attesting witness of the Will dated 24.1.2002) as PW-2, Dr Mohan Bheemrao Ashwanthpur (the doctor who had certified that Ms Gulab Sripad Deshpande was of sound physical and mental health as on the date of the execution of the Will dated 24.1.2002) as PW-3, and Mr. CB Patil (the advocate, who drafted the Will dated 24.1.2002 and witnessed Ms Gulab Sripad Deshpande signing the Will) as PW- 4. These witnesses are examined to prove the execution and attestation of the Will dated 24.1.2002 as required under the provisions of Section 68 of 13 the Indian Evidence Act and Section 63 of the Indian Succession Act, 1925.
14. Further, at the instance of the appellant, the jurisdictional Sub-Registrar is summoned to produce the Registers to evidence the fact of registration. In compliance with such summons, the jurisdictional Sub- Registrar deputed one of the officers, who is examined as PW-5. This witness has produced the Registers evidencing the registration of the Will, and the relevant extracts are marked as Exhibits P.46 - P.48.
15. Significantly, the contesting respondents did not lead any evidence. On the other hand, they filed a memo dated 09.03.2015 stating that because the appellant has failed to discharge the burden of proving the Will dated 24 1.2002, these respondents do not wish to lead any oral evidence. They have also stated that they did not have any oral evidence.
14
16. The appellant, who examined herself as PW1, has deposed insofar as the execution and the attestation of the Will dated 24.1 2002, that she had not witnessed Ms Gulab Sripad Deshpande execute this will dated 24.1.2002, nor was she an attesting witness. Therefore, the evidence of the appellant, rightly, has not received much attention from the civil Court which was deciding the question, whether the appellant was able to prove due execution and registration of the Will dated 24.1.2002.
17. However, the civil Court, for different reasons, has not accepted the evidence of the other witnesses examined by the appellant The civil Court has refused to accept the evidence of PW - 2 on the ground that his evidence as regards attestation of the Will dated 24.1.2002 is not in compliance with the provisions of section 3 of the Transfer of Property Act, 1872. The civil Court has refused to accept the evidence of the doctor, PW-3 opining that the Doctor's evidence is contradictory and his version is suspicious. Further, the civil 15 court has not considered the evidence of PW-4, the scribe, because the civil Court has opined that the witness has not stated about having drafted the Will dated 24.1.2002 but has spoken about witnessing Ms Gulab Sripad Deshpande executing the Will dated 24.1.2002.
18. The civil Court has relied upon the evidence of PW-5, an officer deputed by the Sub- Registrar, for whom summons was issued only to produce the Registration Registers. The civil Court has accepted the evidence of PW5 that the signatures found in Exhibit P 46 (a) and Exhibit P 47
(a) do not appear to be of the same person. The Exhibit P 46 is an extract of the Register of the year 1993-94, and Ms Gulab Sripad Deshpande's LTM therein is marked as Exhibit 46 (a). The Exhibit P 47 is an extract of the Register of the year 2001-02, and Ms Gulab Sripad Deshpande's LTM therein is marked as Exhibit P 47 (a). The civil Court has concurred with opinion expressed by this official witness, who was only summoned to produce documents, after its own reading of 16 the signatures and the differences between them. Further, the civil Court having thus disbelieved the due execution and attestation of the Will dated 24.1.2002, has concluded that Ms Gulab Sripad Deshpande, for different reasons offered in the impugned judgement, had no right in the properties bequeathed and as such, she could not have executed the Will dated 24.1.2002 or the later Codicil.
19. The appellant is aggrieved by the civil Court's finding that the evidence of PW-2 and 3 are not trustworthy, that the evidence of PW-4 does not inure to the advantage of the appellant, and that Ms Gulab Sripad Deshpande did not have ownership right in the properties bequeathed under the Will dated 24.1.2002 and the later Codicil. The appellant is also grieved because the civil Court has not considered the fact that Ms Gulab Sripad Deshpande herself had filed an application in OS No. 80/2000 stating on oath that she had executed the Will dated 24.1.2002 and that she wanted this Will to be kept in the Court's safe custody. The contesting 17 respondents had not denied the execution, or the due attestation of the Will dated 24.1.2002. The contesting respondents had only asserted inter alia that Ms Gulab Sripad Deshpande did not have any right or title or interest in the properties and therefore, she could not have executed this Will dated 24.1.2002. But, the application was allowed, and the Will dated 24.1.2002 was received and kept in safe custody. The appellant's case is that the civil Court should have examined the evidence of the different witnesses examined in their proper perspective, and in the light of the aforesaid circumstances.
20. The learned senior counsel arguing on behalf of the appellant predicated his submissions on the ground that the civil Court was completely tangential in examining whether Ms Gulab Sripad Deshpande had any bequeathable interest in the properties bequeathed under the Will dated 24.1.2002 as that was a question which would be considered in the pending suits in OS No. 80/2000 and OS No. 84/2005 18 pursuant to the orders in the writ petition. The learned senior counsel emphasised that the civil Court could not have refused probate because Ms Sripad Gulab Deshpande, the father of Ms Gulab Sripad Deshpande, had not challenged a decree in an earlier proceedings in OS No. 7/1953 initiated by her father. Similarly, the civil Court, on a misreading of certain documents, could not have concluded that the appellant had failed to establish Ms Gulab Sripad Deshpande had ownership to the properties bequeathed, which never have been in issue in the present proceeding.
21. As regards this submission, the learned Senior counsel relied upon the decision of the Hon'ble Supreme Court in Delhi Development Authority v. Mrs. Vijaya C Gurshaney reported in AIR 2003 Supreme Court 3669, and relied upon paragraph 8 which reads as follows:
"It is settled law that a Testamentary Court whilst granting Probate or Letters of Administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A Testamentary Court is only concerned 19 with finding out whether or not the testator data executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even though Probate or Letters of Administration have been granted."
22. The learned senior counsel next contended that it is settled law that the courts, while deciding the question whether a Will was duly executed and attested, must satisfy itself, having regard to the totality of the circumstances. The court's role in matters concerning Wills is limited to examining whether the instrument propounded as the last Will of the deceased is or is not executed by the testator, and whether it is the product of a free and sound disposing mind. The learned counsel relied upon the decision of the Hon'ble Supreme Court in M B Ramesh (Dead) by LRs v. K.M.Veeraje Urs (Dead) by LRs and others reported in (2013) 7 Supreme Court cases 490.
20
23. The learned Senior Counsel also canvassed that the civil Court has erred in not considering the circumstances in which Ms Gulab Sripad Deshpande had executed the Will dated 24.1.2002. The civil Court should have considered the indisputable fact that Ms Gulab Sripad Deshpande, who was a spinster, had instituted suit in OS No. 80/2000 and OS No. 84/2005 (and, many other ancillary as wells as auxiliary proceedings), and she had herself filed an application in OS No. 80/2000 supported by her affidavit stating that she had voluntarily executed the Will dated 24.1.2002 and she desired that this Will be kept in the safe custody of the Court. This application was allowed despite opposition by the contesting respondents and others. The court's order remained unchallenged, and the Will dated 24.1.2002 was kept in the Court's safe custody. The civil Court had summoned the records in O.S.No. 80/2000, and as such, the application by Ms Gulab Sripad Deshpande and the orders of the civil Court on such application are part of the record and which have been pointedly ignored by the Court. This lone factor alone 21 would suffice to vitiate the findings rendered by the Probate Court.
24. The learned senior counsel relied upon a lapsed proposal to amend the Indian Evidence Act, 1872 to even otherwise emphasise the importance of Ms Gulab Sripad Deshpande submitting an application in OS No. 80/2004 for safekeeping of the Will dated 24.1.2002, by relying upon an amendment proposed to the Indian Evidence Act, 1872 in the year 2003. The learned Senior counsel contended that the significance of admission of execution of Will by the testator/testatrix during their lifetime was recognized, and therefore, a proposal was made to substitute section 70 of the Indian Evidence Act, 1872 to read:
"70. Admission of Execution by Party to attested Will: The admission by the executant of an attested will of its execution shall, if such admission is made during his lifetime in a pleading or otherwise in the course of the suit of proceedings, be sufficient proof of its execution as against those who dispute the execution, though the Will is one required by law to be attested."22
However, the learned Senior Counsel submitted that the proposed amendment is relied upon to emphasize the importance of Ms. Gulab Sripad Deshpande filing the application as stated above. The learned Senior Counsel urged that it was incumbent upon the civil Courts, in the light of the aforesaid decision of the Hon'ble Supreme Court, to consider the aforesaid facts, and the evidence on record that the appellant and respondent No. 1 to 4, who are the beneficiaries under the Will dated 24.1.2002, were not only her brother's wife and children but she has also resided with them throughout their life supporting and providing for them. The civil Court's failure to consider these facts and circumstances has resulted in a wholly erroneous reading of the evidence on record and perverse finding. These are circumstances which ought to have weighed in favour of the plaintiff. The failure of the Court in this regard renders the findings perverse.
23
25. The learned Senior Counsel canvassed that the appellant had proved the due execution and attestation of the Will dated 24.1.2002 by examining an attesting witness, the scribe and the doctor, who had certified that Ms. Gulab Sripad Deshpande was in a sound state of mind as on the day she executed the Will dated 24.1.2002. The attesting witness, PW2, was categorical in stating that he had been to the Sub- Registrar's Office and he attested the Will in the presence of the testatrix. The appellant has also examined, the scribe, an advocate - PW4, who was categorical that the testatrix, Mrs Gulab Sripad Deshpande had signed the Will dated 24.1.2002 in his presence and he had signed the Will dated 24.1.2002. The civil Court could not have ignored the evidence of this witness solely on the ground he had been truthful in admitting that though he had signed the Will dated 24.1 2002 as the scribe and he had not signed as a witness identifying the testatrix, Mrs. Gulab Sripad Deshpande. The evidence of these witnesses satisfy the requirements under section 63 of 24 the Indian Succession Act, 1925 and section 82 of the Evidence Act, 1872.
26. As regards the civil Court disbelieving the evidence of the doctor, PW-3, the learned senior counsel contended that the doctor has deposed that his acquaintance with Ms.Gulab Sripad Deshpande was because she was visiting him for regular treatment over a period of time, and not because she was suffering from leprosy. The civil Court has examined the evidence of this doctor by assuming that Ms.Gulab Sripad Deshpande suffered from leprosy related disfigurement of her fingers and that too because the contesting respondents contended that Ms. Gulab Sripad Deshpande was suffering from leprosy and suffered disfigurement. The civil Court's assumption is unjustified. But, the civil Court failed to consider that the contesting respondents did not lead any evidence in support of their case that Ms Gulab Sripad Deshpande continued to suffer from leprosy and she was under constant medical treatment, and 25 even as an inpatient in Bangalore. The civil court's reading of the evidence is prejudiced and contrary to law. The civil Court should have seen that the contesting respondents had not tendered themselves to cross-examination after necessary evidence in this regard.
27. The civil Court has relied upon the evidence of PW5, an officer from the Sub-Registrar's office, in opining that there were certain differences in the thumb impressions found in the Registration Register for the year 1993-94 (Exhibit P-46) and the signature in the Registration Register for the year 2000-2001 (Exhibit P-47). The learned senior counsel contended that the civil Court could not have relied upon the evidence of PW5 either as regards the alleged differences in the thumb impressions or as witness to the execution and attestation. Firstly, because the official was only required to produce the document and not to give evidence, and secondly, because the evidence, even if it could have been recorded, would be relevant for the limited 26 purposes of establishing the due registration of the Will dated 24.1.2002. The learned senior counsel relied upon the decision of the Hon'ble Supreme Court in Bhagat Ram and others v. Suresh and others reported in (2003) 12 SCC 35, and relied upon the following declaration by the Hon'ble Supreme Court:
"The ratio of the several decisions by the High Court of Punjab and Haryana cited at the Bar is that, in the facts and circumstances of a given case, the Registrar may also fulfil the character of an attesting witness as required by law and if, on entering into witness box as required by section 68 of the Evidence Act, proves by his testimony the execution of document by deposing to have witnessed himself the proceedings as contemplated by section 63 of the Succession Act, he can be an attesting witness. The certificate of registration under section 60 of the Registration Act, 1908 rises a presumption under section 114 Illustration
(e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelt out by the endorsements made under section 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or 27 verification of attestation of the Will as required by the rules enacted by section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the Will having been duly executed and attested.
28. The learned Senior Counsel urged that in the light of the law, as settled by the Apex Court, the court below ought to have eschewed from consideration, this witness's statement in this regard as he was merely deputed to produce the documents. On the other hand, the learned counsel for the contesting respondents argued in support of the impugned judgement contending that the appellant had not only failed to establish the due execution and attestation of the Will dated 24.1.2002 but had also failed to explain the suspicious circumstances that surrounded the execution of the Will dated 24.1.2002. The learned counsel contended that the execution and attestation of the Will dated 24.1.2002 was suspicious because the appellant was conducting different proceedings as the power of attorney for Ms. Gulab Sripad Deshpande. It is admitted that the appellant herself 28 purchased the stamp paper upon which the Will dated 24.1.2002 is drawn and this showed that the appellant, a beneficiary, had taken an active part in the execution of the Will. It is undisputed that Ms Gulab Sripad Deshpande suffered from leprosy, but the appellant had not led any evidence to establish that she could have executed a Will despite such affliction. Though, the appellant relied upon a codicil, no evidence as regards its due execution and attestation is placed on record.
29. Further, the learned counsel contended that the necessary ingredients under section 63 of the Indian Succession Act, 1925 were not established as the signatures of Ms. Gulab Sripad Deshpande in the Will dated 24.1.2002 were not marked through the attesting witness. Furthermore, the appellant had asked for probate of the Will dated 24.1.2001, but Will dated 24.1.2002 is produced, and the evidence related to this Will was led. The appellant had not asked for any amendment.
29
30. The learned counsel for the contesting respondents relied upon the decision of the hon'ble Supreme Court in Ramesh Verma v. Lagesh Saxena reported in (2017) 1 SCC page 257 to emphasise that the propounder of a Will must show by satisfactory evidence that the Will was signed by the testator and that the testator, at the relevant time, was in a sound and disposing state of mind and understood the nature and effect of the disposition. The executant had put his/her signature to the document on his own free will. The document shall not be used as evidence until one attesting witness at least has been called for the purposes of proving its execution. This would be a mandate under section 68 of the Indian Evidence Act and this position remains the same even in cases where the opposite party does not specifically deny the execution of the document. The appellant had to discharge this burden notwithstanding the fact that the contesting respondents had not led any evidence and no advantage would avail to the appellant because the contesting respondents had not led in evidence. 30
31. The learned counsel relied upon the decision of the Hon'ble Supreme Court in Kashibai v. Parvathi by reported in (1995) 6 SCC 213 and relied upon paragraph-11 which reads as under:
"Having regard to the aforementioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgement of the signature or mark or the signature or mark of such other person."
The learned counsel, relying upon this decision, further contends that there cannot be any presumption about the aforesaid requirements in law. The appellant, who was required to establish the aforesaid, has not established the necessary ingredients as the evidence of each of the witnesses examined by the appellant as regards the execution and attestation of the Will dated 24.1.2002 falls short of these requirements. The appellant cannot seek any advantage of 31 presumptions as regards the evidence required to establish due execution and registration of the Will dated 24.1.2002.
32. The learned Counsel submitted that therefore, the civil Court has rightly disbelieved the evidence of PW-2 because his evidence does not conform to the aforesaid requirements in law. Insofar as the civil Court discarding the evidence of PW-4, the scribe, who has also stated that he had witnessed the testatrix, Ms Gulab Sripad Deshpande, execute the Will, the learned counsel contended that the evidence of this witness cannot be treated as the evidence of an attesting witness because animus attestandi a necessary ingredient of attestation is not established. A witness examined as an attesting witness must put his signature in a document only in discharge of a statutory duty, and otherwise the person cannot be treated as an attesting witness. The learned counsel also relied upon the decision of the Hon'ble Supreme Court in Benga Behera and others v. Braja Kishore Nanda and others reported in (2007) 9 SCC 728.
32
33. In view of the rival submissions, the questions that arise for consideration of this court are:
i) Whether the civil Court in the present
proceedings could have held that Ms Gulab
Sripad Deshpande had no bequeathable
interest in the properties for her to have
executed the Will dated 24.1.2002.
ii) Whether the court below was right in not
appreciating the evidentiary value and
binding effect of the order passed on I.A.XX filed in O.S.No.80/2000.
iii) Whether the appellant is unable to establish the due execution and attestation of the Will dated 24.1.2002 by Ms Gulab Sripad Deshpande as required under section 68 of the Indian Succession Act, 1925.
iv) Whether the finding by the civil Court that the
appellant has not established the due
execution of the Will dated 24.1.2002 by Ms Gulab Sripad Deshpande is based on proper appreciation of the evidence on record.
33
v) Whether the appellant is not entitled for probate of the Will dated 24.1.2002.
Reg. Question No. 1
34. It is undisputed that the testatrix, Ms Gulab Sripad Deshpande was asserting absolute rights to certain properties and a share in other properties much prior to the date of her demise on 6.1.2007. The questions whether Ms. Gulab Sripad Deshpande was entitled for declaration of ownership rights and her share as asserted by her in the different properties are subject matter of the suit in O.S. No.80/2000 as well as the suit in O.S No.84/2005. The learned counsel are unanimous in their submission that the suit in OS No. 80/2000 is pending consideration, and there is a specific order in writ petition in WP No. 67211/2014 deferring the final adjudication of the rights asserted by Ms Gulab Sripad Deshpande in OS No. 84/2005 until the final adjudication on whether the appellant and respondent No.1 34 to 4 would be entitled for probate of the Will dated 24.1.2002.
35. The civil Court in the present proceedings was required to decide on the Issues framed, and the Issues presented a narrow canvas of whether the appellant is able to prove that Ms Gulab Sripad Deshpande had executed the Will dated 24.1.2001 (sic) in a sound and disposing state of mind, and whether the appellant is entitled for grant of probate of this Will. The parties were not at issue in the present proceedings, and could not have been at issue in the present proceedings, on whether Ms. Gulab Sripad Deshpande had title to the properties bequeathed under the Will dated 24.1.2001. In fact, the contesting respondents filed a Memo dated 09.3.2015 stating that they had no oral evidence because the appellant had not been able to discharge the burden of establishing due execution and attestation of the Will. Thus, the entire domain of the litigation before the civil Court was confined to examination of the questions relevant 35 to conclude whether Ms Gulab Sripad Deshpande was in a sound and disposing state of mind to execute the Will dated 24.1.2001 (sic), and that the due execution and attestation of this Will was established.
36. As rightly argued by the learned senior counsel for the appellant, it is trite that a testamentary court, while granting probate or letters of administration is only concerned with finding out whether or not the testator executed the testamentary instrument of his/her free will and therefore, should examine the due execution of the testamentary instrument in the light of the evidence of at least one attesting witness. A testamentary court does not decide on any other question. The decision to grant either a probate or letters of administration, would merely enable administration of the estate of the deceased, and the disputes as to title to the properties will have to be adjudicated in appropriate proceedings. A useful reference could be made in this regard to the decision of the Hon'ble Supreme Court in the case of 36 Delhi Development Authority (supra) relied upon by the learned senior counsel for the appellant. Therefore, the finding by the civil Court that Ms Gulab Sripad Deshpande had no bequeathable interest in the properties that are subject matter of the Will dated 24.1.2002 was entirely outside the scope of the dispute, both in law and on pleadings. As such, the finding by the civil Court in this regard being contrary to the law laid down by the Apex Court as stated supra cannot be sustained and accordingly, the question No.1 is answered.
Reg. Question No.2,3 and 4:
37. It is settled law that the circumstances which indicate the reason for the execution of a Will and the circumstances in which a Will is executed would be relevant factors in the adjudication on whether a testator/testatrix executed the Will in a sound disposing state of mind. The Hon'ble Supreme Court in the case of M.B. Ramesh (supra), has held as follows:
37
"As stated by this court also in H.Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the Will was duly executed, the court must satisfy its conscience having regard to the totality of the circumstances. The court's role in matter concerning Wills is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator, and whether it is the conduct of the free and sound disposing mind".
The Civil Court has not even referred to, much less appreciated, the significance of the application filed by Ms. Gulab Sripad Deshpande in O.S.No.80/2000 for permission to produce the Will dated 24.01.2002 with a request for keeping this Will in safe custody, or the application being allowed by the court on 28.06.2005 permitting the original Will to be kept in the safe custody. Ms. Gulab Sripad Deshpande has filed this application supported by an affidavit executed by her. She is categorical in this affidavit that she had executed and registered the Will dated 24.1.2002 and the production of this Will would be necessary to prosecute 38 the suit after her death. She has also stated that the appellant, her brother's daughter had taken over the conduct of the proceedings. The civil Court vide its order dated 23.4.2011 summoned the records in O.S.No.80/2000, and as such, the application and the orders are part of the proceedings.
38. It follows from the aforesaid circumstances that the Will dated 24.01.2002 was not seeing the day light for the time after the demise of Ms. Gulab Sripad Deshpande. Further, these circumstances also offer the reason for the execution of the Will dated 24.01.2002. It is from the vantage offered by these circumstances, the evidence on record should be assessed to ascertain whether Ms. Gulab Sripad Deshpande was in a sound disposing state of mind and whether the same is established as required under the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Otherwise, a vital and a material link would be left of out of the zone of 39 the consideration. Therefore, this court is of the considered opinion that the civil Court could not have appreciated the evidence on record completely ignoring these circumstances. The omission of the Court, intentional or unintentional, to appreciate this crucial fact renders the findings untenable.
39. The ingredients under section 63 (a) (b) of the Indian Succession Act, 1925 are that the testator/testatrix must have signed the Will (or otherwise affixed the mark) and that the signature must be so placed that it shall appear that it was intended to give effect to the writing as a Will. The appellant's case is that Ms. Gulab Sripad Deshpande signed the Will dated 24.1.2002 herself and that this is borne out by the due registration thereof. However, the contesting respondents have asserted that Ms. Gulab Sripad Deshpande could not have signed the Will dated 24.1.2002 as her fingers were disfigured because of leprosy. This would be an important factor, because if Ms. Gulab Sripad Deshpande was indeed afflicted with leprosy and suffered disfiguration of 40 fingers, the requirement of the testator signing the Will would not be established.
40. The contesting respondents to bolster their case that Ms Gulab Sripad Deshpande could not have affixed her signature, assert that Ms Gulab Sripad Deshpande was under
constant treatment for leprosy, and she was receiving treatment in Belgavi Leprosy Hospital between 1985 - 2004.
But they have not examined any witness, or placed any documentary evidence on record to substantiate the same.
Their mere pleadings has been appreciated by the Court as the gospel truth. A glaring fact to which the Court has blinded itself is the fact that the respondents had till the death of the testatrix, never ever questioned her ability to sign papers or use her fingers.
41. The appellant, on the other hand, in her evidence does not dispute that Ms. Gulab Sripad Deshpande suffered from leprosy in a childhood, but contends Ms. Gulab Sripad Deshpande was cured of the affliction. She has examined PW- 41 4, a doctor whose certificate is enclosed to the Will dated 24.1.2002. This witness, PW-4 has stated in his evidence that he knew Ms. Gulab Sripad Deshpande and issued certificate/s in the year 2002 and 2003 affirming that she was physically and mentally sound as of the relevant time. But, the civil Court has opined that the evidence of the doctor (PW-4) is doubtful because he has denied an admitted fact that Ms. Sripad Gulab Deshpande was suffering from leprosy, and though he has stated that he had issued his certificates on the letterhead, the certificate is annexed to the Will dated 24.1.2002 without being on a separate letterhead.
42. However, this witness has been categorical that Ms Gulab Sripad Deshpande was visiting him regularly for treatment for illness such as fever and cold. He has denied that the suggestion that he knows that Ms Gulab Sripad Deshpande was suffering from leprosy and she covered her hands because she suffered from disfigurement of fingers. The doctor (PW-4) is categorical that that she did not suffer 42 visible signs of leprosy. It is suggested to this witness that Ms Gulab Sripad Deshpande was receiving treatment as an inpatient in Belagavi Leprosy Hospital between 1985 and 2004, and he has denied any knowledge of she receiving such treatment. The contesting respondents have not placed any evidence on record to establish that Ms Gulab Sripad Deshpande was indeed receiving treatment as a leprosy patient as asserted by them. In the absence of any evidence in this regard, the civil court could not have disbelieved the consistent testimony of the doctor (PW-4). Especially on the ground that it is admitted that Ms. Gulab Sripad Deshpande suffered from leprosy. In the light of the evidence of the doctor (PW4), and the indisputable facts that Ms. Gulab Sripad Deshpande had herself filed the Will dated 20.1.2002 with the Court in OS No. 80/2000 and the Will dated 24.1.2002 is registered, this Court is of the considered view that the appellant it cannot be reasonably concluded that Ms. Gulab Sripad Deshpande has not affixed her signature and 'LTM' on the Will dated 24.1.2002 as required under Section 43 63(a) and (b) of the Indian Succession Act, 1925. Further, there is no dispute that Ms. Gulab Sripad Deshpande has signed pleadings/ application and affidavits in the proceedings pending as of the date of the Will in question. Neither evidence of PW5 nor the Civil Court's own reading could blunt the evidentiary value of these very formidable circumstances.
43. The Hon'ble Supreme Court in a long line of decisions has explained the essentials as regards the attestation of a Will under section 63 (c) of the Indian Succession Act, 1925 and proof of such attestation under section 68 of the Evidence Act, 1872. Therefore, there cannot be any quarrel about the propositions relied upon by the learned counsel for the contesting respondents relying upon the decisions of the Hon'ble Supreme Court in Ramesh Verma v. Lagesh Saxena reported in (2017) 1 SCC page 257, or Kashibai v. Parvathi reported in (1995) 6 SCC 213 or Benga 44 Behera and others v. Braja Kishore Nanda and others reported in (2007) 9 SCC 728.
44. The provisions of Section 63(c) of the Indian Succession Act, 1925 reads as hereunder:
"The Will shall be attested by two or more witnesses, each of whom has seen the testator sing or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
In discharge of the burden, the propounder of a Will must examine an attesting witness in compliance with the provisions of Section 68 of the Indian Evidence Act, 1872. This provision stipulates that a document, required in law to be attested, shall not be used as evidence until one attesting atleast has been called for the proof of its execution. The attesting witness's testimony must conform to the 45 requirements under Section 63(c) of the Indian Succession Act, 1925.
45. The appellant, in discharge of this obligation, has examined PW - 2, an attesting witness to the Will dated 24.1.2002. However, the evidence of this witness is discarded by the civil Court on the ground that the testimony of this witness does not conform to the requirements of attestation as contemplated under section 3 of the Transfer of Property Act, 1872.
46. This witness, PW2 has been unequivocal in stating that he was called to the Sub-Registrar's office to attest the Will dated 24.1.2002. Ms Gulab Sripad Deshpande was present at the Sub-Registar's office. He signed the Will dated 24.1.2002. He did not notice who else had signed the Will dated 24.1.2002 when he signed. This evidence is challenged on two grounds on behalf of the contesting respondents. It is contended that it is obvious from this testimony that the testatrix, Ms Gulab Sripad Deshpande, did 46 not sign the Will dated 24.1.2002 in the presence of this witness, and neither did this witness see the other attesting witness sign the Will. It is further contended that because the other attesting witness is not examined, the due attestation of the Will is not established.
47. It is settled that to prove due attestation it must be established that a Will has to be attested by two or more witnesses each one of whom:
• has seen the testator sign or affix his mark to the Will, or • has seen some other person signing the Will in the presence and by the direction of the testator or • has received from the testator a personal acknowledgement of his signature or mark or the signature of each other person.
Further, that each of the witnesses has signed the Will in the presence of the testator.47
48. The Hon'ble Supreme Court, in the recent decision, in Civil Appeal Nos. 5901-5902 of 2009 in Ganesan (Dead) through LRs v. Kalanjiam and others decided on 11.7.2019 has held as follows:
'Section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on the part of the testator. Where a testator asks a person to attest a Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the Will simultaneously at the same time in presence of each other and the testator."
49. The test is whether the attesting witness received an acknowledgement from the testator/testatrix that he/she had executed the Will as per one of the alternatives 48 mentioned in section 63 of the Indian Succession Act, 1925, and thereafter the witness has attested the Will. The acknowledgement could also be in the form of express words or conduct. The evidence of PW-2 is categorical that Ms. Gulab Sripad Deshpande was present in the Sub- Registrar's Office when he went there. He was instructed by Ms. Gulab Sripad Deshpande and another to sign the Will, and he signed the Will thereafter. There is nothing in the cross-
examination of this witness, PW-2 to disbelief the testimony of this witness as regards these material circumstances. This court is of the considered opinion that in the aforesaid circumstances, it is established that the attesting witness examined, PW-2 received acknowledgement from the testatrix, Ms Gulab Sripad Deshpande that she had executed the will dated 24.1.2002, and he signed the Will thereafter. Thus, the due attestation of the Will by PW - 2 is also proved, and the evidence of this witness, as regards attestation, cannot be discarded only because the testatrix, Ms Gulab Sripad 49 Deshpande did not sign the Will in his presence or that he did not see the other attesting witness sign the Will.
50. The suspicious circumstances relied upon the learned counsel for the contesting respondents, are not really suspicious in the facts and circumstances of the case. The appellant, one of the legatees, was assisting Ms Gulab Sripad Deshpande in the conduct of the different proceedings as her power of attorney. The appellant is not the only beneficiary. The beneficiaries are Ms Gulab Sripad Deshpande's brother's wife and children. The evidence is that Ms. Gulab Sripad Deshpande, being a spinster resided with them, and she also provided for their maintenance and education. It is nobody's case that Ms Gulab Sripad Deshpande had any other legal heirs other than the appellant and the respondent Nos.1 to 4, and insofar as the contesting respondents, she was engaged in litigation. Their exclusion from the bequeath, in these circumstances, cannot be construed as being suspicious. Therefore, neither the fact that the appellant is one of the 50 beneficiaries nor that the appellant purchased the stamp paper on which the Will dated 24.1.2002 is drawn, are suspicious circumstances. The other circumstance that is cited as suspicious i.e., Ms. Gulab Sripad Deshpande was suffering from leprosy is already discussed and concluded that the Civil Court's finding in this regard is untenable.
51. The civil Court has relied upon the evidence of PW-5, an official from the Sub- Registrar's Office, who appeared before the civil Court in response to summons issued on the appellant's application to produce the Registration Register. The civil Court could not have relied upon this evidence as regards certain differences in the left thumb impressions found in the registers of the year 1993-94 and 2000-2001 noticed by the civil Court. It is undisputed that this witness is not an expert in Dermatoglyphics, and neither the civil Court could have undertaken such exercise in the light of the evidence on record. The civil Court has overlooked material circumstances and relied upon 51 extraneous circumstances to disbelieve the Will dated 24.1.2002 and consequently, refusing the probate for the Will dated 24.1.2002.
52. Therefore, this court, in the totality of the facts and circumstances of the case, is of the considered opinion that the appellant is able to establish the due execution and attestation of the Will dated 24.1.2002 without any suspicious circumstance, and the civil Court has been perverse in its appreciation of the material on record and totally erroneous in its conclusion that the due execution and attestation of the Will dated 24.1.2002 is not established. The question Nos.2, 3 and 4 are answered accordingly. Consequentially, question No.5 is answered holding that the appellant would succeed and be entitled to the probate for the Will dated 24.1.2002. Hence, the following:
ORDER The appeal is allowed, and the judgment and decree dated 31.3.2015 in O.S.No.3/2010 on the 52 file of the I Additional District Judge, Belagavi is set aside.
The petition in P&SC No.12/2007 on the file of the I Additional District Judge, Belagavi is allowed and the office of the I Additional District Judge, Belagavi shall issue probate, as prayed for.
SD/-
JUDGE Sd/-
JUDGE Nv*