Bangalore District Court
Sri. K. Rajaiah vs Sri. S. Natarajan on 27 February, 2023
KABC0A0009762008
IN THE COURT OF THE IV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYO HALL UNIT, BENGALURU
(CCH21)
Dated: This the 27th day of February, 2023
PRESENT:
SRI. V. Nagaraja, LLB, LLM, PGD in CLCF.,
IV Addl. City Civil and Sessions Judge, Bengaluru
OS. No.25413/2008
Plaintiffs: Sri. K. Rajaiah,
S/o N. Kothandarama Naidu,
Aged about 68 years,
Director of M/s Chamundesware
Studio & Laboratory Pvt. Ltd.
No.48, Millers Tank Bund Road,
Bengaluru52.
Since deceased by L.R.'s
1(a) Smt. Swarnalatha Rajaiah,
W/o late K. Rajaiah,
Aged about 70 years,
No.1668, 5th Cross,
II Block, Banashankari,1st Stage,
Bengaluru50.
1(b) Sri. R. Vijay Krishna,
S/o late K. Rajaiah,
Aged about 43 years,
2 O.S.25413/2008
No.1668, 5th Cross,
II Block, Banashankari 1st Stage,
Bengaluru50.
(By Sri. S.G.B. - Adv.)
.. Vs ..
Defendants: 1. Sri. S. Natarajan,
S/o Late Subramania Pillai,
Hindu, Aged about 68 years,
(D1. Died and suit against him is
abated as per order dated
24.02.2021).
2. Sri. Subramanya Bhat,
S/o Late S. Narayana Bhat,
Hindu, Aged about 59 years,
3. Sri. N. Kannan,
S/o Late S. Narayanan
Hindu, Aged about 57 years,
Sl.No.13, Executors of the Estate of
Late Sri. K. Kuppuswamy Naidu
have given a common address as:
C/o V.S. Ramaswamy & Co.,
No.105/15, Saleh Ahmed Building,
Lady Curzon Road, Bengaluru01.
4. Smt. Rajalakshmi Sadagopan,
W/o Sadagopan Rajamani,
Aged about 47 years,
3 O.S.25413/2008
5. Sri. Sadagopan Rajamani,
S/o Rajamani Iyengar,
Hindu, Aged about 55 years,
6. Smt.R.S Gayathri Tamizharasan,
W/o Tamizharasan,
Hindu, Aged about 23 years,
7. Sri. Thamizharasan Desikan @
Varadarajan Desikan,
S/o Desikan,
Hindu, Aged about 27 years,
8. Smt. Padma Rajamani,
W/o Shri. Rajamani,
Hindu, Aged about 78 years,
9. Sri. Rajamani Jaganathan,
S/o Jaganathan,
Hindu, Aged about 85 years,
Sl.No.49 are residing at first floor, 48,
Millers Tank Bund Road,
Bengaluru52.
(Dead, his LRS are already on
record)
10. Smt. B.P.J. Vasantha
Nannan Kudil, Ullagaram,
Chennai600061.
Since (Dead, suit against her abated)
11. AGM
Canara Bank
Cunningham Road Branch,
4 O.S.25413/2008
Cunningham Road,
Bengaluru52.
12. Syndicate Bank,
Millers Road Branch,
Millers Road, Bengaluru52.
Rep.by its Manager.
13. State Bank of Mysore,
Cunningham Road Branch,
Cunningham Road,
Bengaluru52.
Rep.by its Sr. Manager
14. M/s Rural Electrification
Corporation Ltd. Regd. Office:Core4,
Scope Complex, 7 Lodhi Road,
New Delhi110003.
15. M/s RCMC Share Registry (P) Ltd,
B106, Sector II, Noida,
UP201301.
(Suit against D.15 is dismissed as
per order dtd:20/10/2010)
16. K.K.Foundations & Public
Charitable Trust, Rep.by
(a) Mr. R. Sadagopan,
(b) Mrs.Rajalaks
hmi,
(c) Mrs. Gayathri
(d) Mr. S. Natarajan
No.48, Millers Tank Bund Road,
5 O.S.25413/2008
Bengaluru52.
17. Sri. S.V. Halaswamy,
(Fathers name not known to the
plaintiff), Major, Proprietor,
Swamy Enterprises, No.3, 5th Main, RPC
Layout, Sankashtahara Ganapathi
Temple Road,
Hampinagara, Bengaluru560104.
[BY Sri.G.V.V.R., for D1 to 5,
By Sri. B.S.J., for D6 to 9,
By Sri. G.S., for D10,
By Sri. M.R.S., for D11,
By Sri. N.S.B., for D12,
By Sri. C., for D13,
By Sri. N.V.K., for D14,
By Sri. A.V.R., for D16,
By Sri. N.J.P.,, for D17,
Date of institution of the 29.02.2008
Suit
Nature of the Suit Administration of Estate,
Accounts and Injunction
Suit
Date of commencement of 03.09.2021
recording evidence
Date on which the 27.02.2023
6 O.S.25413/2008
judgment was pronounced
Total duration Year/s Month/s Day/s
14 10 20
(Sri. V.NAGARAJA)
IV Addl. City Civil and Sessions
Judge, Bengaluru.
7 O.S.25413/2008
JUDGMENT
Original plaintiff, Sri. K.Rajaih has instituted this suit in the form of administrative suit, seeking for passing of preliminary decree U/o 20 Rule 13 of CPC, in his favour for administration of entire estate of his deceased brother Sri. K.Kuppaswamy Naidu and consequential reliefs of permanent and mandatory injunction against defendants No.1 to 9 by restraining them from interfering with management of entire estate of the deceased Sri. K. Kuppaswamy Naidu by the plaintiff and also restrain defendants No.1 to 4 from operating the bank accounts of the deceased Sri. K.Kuppaswamy Naidu maintained in defendants No.11 to 15 and direct the defendants to render true accounts of estate of deceased Sri.K. Kuppaswamy 8 O.S.25413/2008 Naidu and to appoint receiver for that purpose and also for suit cost.
2. Case of the plaintiff in a nutshell is that:
He is natural brother of deceased Sri. K.Kuppaswamy Naidu, who died on 04.03.2007 at his residence situated in the premises of M/s Chamundeshwari Studio and Laboratory private Limited at No.48, Millers Tank Bund Road, Bengaluru.
3. It is further submitted that said Sri. K.Kuppaswamy Naidu was founder & Managing Director of M/s Chamundeshwari Studios and Laboratory Pvt. Ltd., and during his life time, he was living alone in residential portion of said Studio as he was bachelor and he died as such, due to ischemic heart and urinary track infection, so prior to his death i.e. for past few years, he was suffering from ill health 9 O.S.25413/2008 so, his mental and physical health was not allowing him to do any work, so he was confined to bed.
4. It is further averred that above stated Sri. K.Kuppaswamy Naidu died leaving behind him, the plaintiff and his sister (D.10) as sole surviving legal heirs to succeed the properties of said Sri.K.Kuppaswamy Naidu.
5. It is further averred that plaintiff was serving in Aeronautical Development Establishment, Bengaluru and few years back, he retired from service, ever since, plaintiff was leaving with his brother in a portion of residential premises in the above stated Chamundeshwari Premises and he was taking care of his brother, but defendant No.4 who claims to be caretaker and supported by defendant No.5 and 6, who are her husband and daughter, with an intention to 10 O.S.25413/2008 grab the entire estate of the said Sri.K. Kuppaswamy Naidu, they were always obstructing the plaintiff from effectively caring the needs of his ailing brother K.Kuppaswamy Naidu.
6. It is further averred that, said Sri. K. Kuppaswamy Naidu was the son of sister of Mr. Sriramalu Naidu and said Mr. Sriramalu Naidu was running Pakshi Raj Studios at Coimbator and Smt. Seethammal was leaving with said Mr. Sriramalu Naidu and said Smt. Seethammal has a sister namely Smt. Padma Rajamani ie., defendant No.8 and defendant No.9, Sri. Rajamani Jaganathan is her husband. Defendant No.5 Sri. Sadagopan Rajamani is their son and Defendant No.4 Smt.Rajalakshmi Sadagopan is his wife (It is contended that, Sri. Sadagopan married a Muslim lady by name Mumthaz, later she converted as Hindu and named as 11 O.S.25413/2008 Smt.Rajalakshmi). Defendant No.6 Smt. R.S. Gayithri Tamizharasan is their daughter. Defendant No.7 is husband of defendant No.6, and they are all, under the pretext of care taking of Sri.K.Kuppaswamy Naidu, they entered into family of K.Kuppaswamy Naidu and defendant No.4 to 9 colluded with defendant No.1 to 3 created WILL dated 27.09.2006 with an intention to grab entire property or alteast major portion of estate of Sri. K.Kuppaswamy Naidu, infact Sri. K. Kuppaswamy Naidu was not in a position to execute any WILL due to his illhealth and his old age that is to say he was aged about 81 years at the time of disputed WILL. So taking undue advantage of illhealth and old age of the Sri. K.Kuppaswamy Naidu, defendants No.4 to 9 prevailed over him and exploited him and created WILL dated 27.09.2006, when said K.Kuppaswamy Naidu was not in a sound 12 O.S.25413/2008 and disposing state of mind. So, the said WILL is not genuine WILL.
7. It is further averred that, infact Sri. K.Kuppaswamy Naidu before he becoming too ill and when he was in sound state of mind, on his own volition, he bequeathed his entire estate/entire properties to plaintiff by executing WILL dated 29.01.2005, which Sri. K.Kuppaswamy Naidu had deposited with district register Bengaluru but the plaintiff came to know about the fact that defendant No.4 to 6, possibly in collusion with defendants No.1 to 3 got that WILL withdrawn from the safe custody of District Register with an intention to make it appear as if K.Kuppaswamy Naidu himself had withdrawn the said WILL. The plaintiff believes that the defendants No.4 to 6 have custody of said WILL or they might have destroyed it.
13 O.S.25413/2008
8. It is further averred that, original plaintiff Mr. K.Rajiah is legatee under the above said WILL dated 21.09.2005 and as per said WILL S.Natarajan who was a companion of Sri. K.Kuppaswamy Naidu and Dr.V.M. Jayapalan, a practitioner in Siddha System of Medicine who was treating the Sri. K.Kuppaswamy Naidu and Dr. P.L. Prabhakar, an Allopathic Medical Practioner who was also treating Sri. K.Kuppaswamy Naidu and Sri. Lokiah Naidu a close and confident friend of K.Kuppaswamy Naidu and another close friend professor B. Dattaguru were well known about the execution of said WILL by Sri. K.Kuppaswamy Naidu. So, the said WILL dated 21.09.2005 executed by K.Kuppaswamy Naidu in favour of plaintiff is the only last WILL of said K.Kuppaswamy Naidu but he has not executed disputed WILL dated 27.09.2006, but the defendants D1 to D3 who claim to be executors in the disputed WILL have started to manage and squat 14 O.S.25413/2008 upon the suit properties, whereas defendants No.4 to 6 started to claim as beneficiaries/legatees under the disputed WILL and they colluded with defendants No.11 to 14 which are Banks ie., Canara Bank, Syndicate Bank, SBM etc., and they got transferred funds from the accounts of Sri. K.Kuppaswamy Naidu and M/s. Chamundeshwari Studio and defendants started to misuse estate of the Late.K.Kuppaswamy Naidu and they also obstructed/prevented the plaintiff to manage the estate of K.Kuppaswamy Naidu as his legal heir,so he is constrained to file this suit seeking for intervention of this court to ascertain the details of estate of Late. Sri.K.Kuppaswamy Naidu and to administer the same by preserving estate of K.Kuppaswamy Naidu and also to declare that plaintiff is entitled for decree of administration of the entire estate of the Late.Sri.K.Kuppaswamy Naidu and he also sought for consequential relief of permanent and 15 O.S.25413/2008 mandatory injunction against defendant No.1 to 9 by restraining them from interfering with management of entire estate of the deceased K. Kuppaswamy Naidu by the plaintiff and also restrain defendant No.10 and 11 from operating the bank accounts of the deceased K.Kuppaswamy Naidu and direct the defendants to render true accounts of deceased K. Kuppaswamy Naidu from the date of 04.03.2007 and to appoint receiver for that purpose and also restrain the defendants from acting in any manner or in any capacity what so ever with respect to suit schedule "C" to "F" and suit cost.
9. Whereas the Defendants No. 1 to 17 have made appearance through their respective counsels. Whereas, defendants No.1 to 3 filed their joint written statement. Whereas, defendants No.4 to 9 filed their joint written statement, Defendant No.11 filed his 16 O.S.25413/2008 separate written statement. Defendant No.16 also filed it's separate written statement. Defendant No.17 also filed his separate written statement. Whereas D10, 12 to 15 have not chosen to fill their written statement and not contested the case.
10. Defendants No.1 to 3 in their written statement, they have admitted the facts that, they are the executors of estate of Late.K.Kuppaswamy Naidu as shown in the cause title of the plaint.
11. They further admitted that, Late.K.Kuppaswamy Naidu died on 04.03.2007.
12. But they specifically denied all other allegation and they specifically contended that, Late.K.Kuppaswamy Naidu has executed registered WILL dated 27.09.2006, in which he has appointed defendant No.1 to 3 as executors to administrate the 17 O.S.25413/2008 estate of Late.K.Kuppaswamy Naidu. So, when Late.K.Kuppaswamy Naidu has appointed them as executors to administrate his estate as per his wish and WILL, then the question of granting decree in favour of plaintiff to administrate the estate of deceased does not arise, because Sec. 2(a) of Indian Succession Act clearly defines that, ' Administrator' means a person appointed by competent authority to administer the estate of a deceased person when there is no Executor".
13. It is further contended that, after the death of Late.K.Kuppaswamy Naidu, his registered WILL come into operation and these defendants have already taken up the responsibility to act as executors under the said WILL.
14. It is further contended that, when these defendants have already been discharging their duties 18 O.S.25413/2008 as a executors under the registered WILL dated 27.09.2006, then there is no cause of action for the plaintiff to seek for appointment of administrator or granting decree in his favour to administrate the estate of deceased Late Sri.K.Kuppaswamy Naidu does not arise. Hence, suit of the plaintiff is liable to be dismissed. On these main grounds and other grounds specified in their written statement, they prayed for dismissal of the suit.
15. Whereas, defendants No.4 to 9 in their written statement, they have admitted that facts that, plaintiff is younger brother of deceased Late.K.Kuppaswamy Naidu and said Late.K.Kuppaswamy Naidu died on 04.03.2007 in the residential premises situated in M/s. Chamundeshwari Studio and Laboratory, Bengaluru. They also admitted 19 O.S.25413/2008 that fact that, Late.K.Kuppaswamy Naidu was bachelor. They further admitted that, the relationship among the defendants No.4 to 9 as narrated in the plaint and they also admitted the fact that, defendant No.10 Smt. B.P.J. Vasantha is sister of plaintiff, Late.K.Kuppaswamy Naidu.
16. Whereas, they specifically denied all other plaint allegations and they specifically contended that, the question of administrator of the estate of the deceased would arise only under the circumstances prescribed by law but plaintiff has not made any such averments for seeking administration of estate of Late.K.Kuppaswamy Naidu. Hence, suit of the plaintiff is liable to be dismissed.
17. They specifically contended that, Late.K.Kuppaswamy Naidu during his life time that too when he was sound state of mind, on his own 20 O.S.25413/2008 volitation, he executed registered WILL dated 27.09.2006 and said WILL is genuine one but not concocted WILL as contended by plaintiff.
18. They further contended that, plaintiff has already filed another suit in O.S.No.25543/2017 seeking permanent injunction against these defendants by alleging that, WILL dated 27.09.2006 was not genuine but these defendants have seriously contested in the said case. So after realizing the fact that, WILL dated 27.09.2006 is valid and genuine WILL, plaintiff got withdrawn the said suit by filing memo on 30.11.2007, such being so, now he has filed present suit only with an intention to harass these defendants and to obstruct the defendants No.1 to 9 to act as per WILL dated 27.09.2006. Hence, suit of the plaintiff is liable to be dismissed. On these main grounds and other grounds specified in their written statement, they prayed for dismissal of the suit. 21 O.S.25413/2008
19. Whereas, defendant No.11 who is Manager of Canara Bank filed in his written statement, he contended that, he has not aware of the facts narrated in para No. 2 & 3 of the plaint, whereas, he specifically denied all other plaint allegations and he has taken specific contention that, during the life time of Late.K.Kuppaswamy Naidu, he has submitted nomination forms with respect to his accounts maintained in the bank as detailed below.
a. For his account No.CA/C26535 he has gieve nomination form on 27.09.2006 nominating Smt. Rajalakshmi Sadagopan to whom in the evnet of his death the amount of deposit to be returned by the bank. His nomination form has been registered by this defendant under register No.30325 on 06.10.2006.
b. For his account No.FDR No.AGFD 040410 he has given nomination form on 27.09.2006 nominating Smt. Rajalakshmi Sadagopan to whom in the event of his death the amount of 22 O.S.25413/2008 deposit to be returned by the bank. His nomination form has been registered by this defendant under register No.614182 on 06.10.2006.
c. For his FDR No. SRC060131 he has given nominating form on 21.12.2006 nominating Smt. Rajalakshmi Sadagopan to whom in the event of his death the amount of deposit to be returned by the bank. His nomination form has been registered by this defendant under register No. 61482 on 22.12.2006.
d. For his FDR No.SRC060130 he has filed nominating form on 21.12.2006 nominating Smt. Rajalakshmi Sadagopan to whom in the event of his death the amount of deposit to be returned by the bank. His nomination form has been registered by this defendant under register No. 61482 on 22.12.2006.
e. In reply to the details of the accounts mentioned in schedule C it is submitted as under.
I. SB (CG) account No. 38380 was in the name of Sri. Late.K.Kuppuswamy Naidy. In the said account there is o nomination hence amount of 23 O.S.25413/2008 Rs. 8,855/ is still in the credit of the said account.
II. The over draft account No. 37744 was operated by Late. Sri. K. Kuppuswamy Naidu. The said OD account has been secured by the fixed deposits bearing FDR No. 040410 for Rs. One crore and another FDR No. FDSRC 060131 for Rs.50,00,000/. Nomination for both the FDRs was in the name of Smt. Rajalakshmi Sadagopan. On the death of Sri. K. Kuppuswamy Naidu the said OD account was closed by adjusting the proceeds of the FDRs Nos. 0104010 for Rs. One Crore and FD SRC060131 for Rs. 50,00,000/ at the request of Smt. Rajalakshmi Sadagopan. Thus by adjusting the proceeds of FDRs Nos. 0104010 for Rs. One Crore and FD SRC060131 for Rs. 50,00,000/ the said OD account has been closed.
III. The OD account No. 37742 is in not existence and same was closed during the life time of K. Kuppuswamy Naidu on 24.02.2006.
IV. The fixed deposit in the name of Kuppuswamy Naidu bearing No. FDSRC 060130 for Rs. 50 lacks has been paid to Smt. 24 O.S.25413/2008 Rajalakshmi Sadagopan as per the nomination in the FDR> V. The current account in the name of Chamundeshwari Studio and Lab Private Limited bearing No. CA25519 is still in existing and there is an amount of Rs. 55,042.23 is in the credit of the said account.
VI. The over draft account No. 37049 in the name of Chamundeshwari Studio and Lab Private Limited is in operation and the same is being operated by Smt. Rajalakshmi Sadagopan as she is the Managing Director of the company. It is relevant to submit that the plaintiff is also one of the directors of Chamundeshwari Studio and Lab Private Limited. The said OD account is secured by the pledge of FD bearing No. KDR0480 for Rs. 15,00,000/ and the nominating to the said FD for Rs. 15,00,000/ is in the name of Smt. Rajalakshmi Sadagopan.
20. So, as per above nominations this defendant has disbursed the amount, such being so, he is neither necessary nor proper party to the present suit. So, suit is bad for misjoinder of the party. Hence, suit 25 O.S.25413/2008 may be dismissed against this defendant No.11 with exemplary cost.
21. Defendant No.16 which is K.K. Foundation and Public Charitable Trust, represented by it's one of the Managing Trustee Mr. Sadagopan (ie., defendant No.5) in his written statement he admitted the fact that he and defendant No.16(a to d) are the trustees and office bearers appointed by founder trustee Sri.K. Kuppaswamy Naidu as shown in cause title.
22. It is significant to note that, defendant No.16 adopted the written statement of defendant No.4 to 9 because, the very defendants are the trustees and office bearers of defendant No.16 trust.
23. The defendant No.16 further contended that, during the life time of K. Kuppaswamy Naidu, he executed registered trust deed dated 21.09.2005 ie., 26 O.S.25413/2008 defendant No.16 which is charitable trust and appointed the defendant No.4 to 9 as trustees and office bearers with an intention to see that even after demise of said K.. Kuppaswamy Naidu his aims and objects towards public, should be continued through the said trust, so this defendant No.16 through its trustees and office bearers and they have been carrying out activities of trust as per registered trust deed . Such being so, the plaintiff with an intention to grab the trust property, he filed present suit. Hence, same may be dismissed with cost.
24. Defendant No.17 who himself got impleaded as defendant No.17, in his written statement he specifically denied all plaint averments and he specifically contended that, he intends to restrict his claim and defence only to a portion of plaint 'A' schedule property which is morefully 27 O.S.25413/2008 described in the schedule annexed to the written statement.
25. He further contended that, he is bonafide purchaser of a portion of 'A' schedule property without notice of defect in the title of his vendors that is to say he purchased a portion of plaint 'A' schedule property under registered sale deed dated 23.12.2013 for valuable consideration from K.K. Foundation and Charitable Trust.
26. It is further contended that, after purchased of the said property, 17th defendant was put in possession of said property and this defendant has obtained all Municipal document in his name, thereafter he entered into Joint Development Agreement (JDA) with Developer for construction of residential apartment over the said property and by 28 O.S.25413/2008 virtue of said Joint Development Agreement Apartments have been constructed in the said property and share of the developer and share of the 17 th defendant have been allotted as per sharing agreement and 17th defendant has already sold apartments. So, the owners of said residential apartments are also necessary parties to the suit, so in their absence of suit is bad for nonjoinder of necessary party, on these main grounds and other grounds specified in his written statement, he prayed for dismissal of the suit.
27. On considering the pleadings of the parties, initially my learned predecessor had framed issues dated 25.02.2011 but after demise of original plaintiff and his Lrs are brought on record, amended issues dated 20.09.2021 are framed as follows.
ISSUES 29 O.S.25413/2008
1. Whether the legal representatives of the plaintiff are entitled for the administration of the suit properties?
2. Whether the legal representatives of the plaintiff are entitled for the accounts and enquiry from defendants 1 to 9 from 04.03.2007?
3. Whether the legal representatives of the plaintiff proves that they are entitled to the relief of permanent and mandatory injunction claimed?
4. What order or decree ?
Addl. Issue
1. Whether the defendants 4 to 9 prove execution and genuinenes of the will dtd. 27.09.2006 executed by K.Kuppuswamy?
28. As I have already pointed out, during the pendency of the suit original plaintiff K.Rajiah died, hence his Lrs are brought on record, so one of his Lrs, Sri.R.Vijayakrishna has been examined as PW.1 and got documents marked as Ex.P1 to P24. 30 O.S.25413/2008
29. On the other hand, in order to prove the contentions of contesting defendants, defendant No.5 Sri. R.Sadagopan is examined as DW1 and got documents marked Ex.D1 to D55 and he further got examined two more witnesses as DW2 and DW3.
30. I have heard all learned counsels. Whereas learned counsel for plaintiff also filed his written arguments alongwith citations.
31. Whereas, learned counsels for Defendant No.4 to 9 & 16 also filed their written arguments with memo of citations.
32. Whereas, learned counsel for defendant No.17 filed memo for adopting the arguments of defendant No.5.
33. Perused the records.
31 O.S.25413/2008
34. After perusal, my findings for the above issues are as under: Issue No.1 : In the Negative, Issue No.2 : In the Negative, Issue No.3 : In the Negative, Addl. Issue No.1: In the Affirmative, Issue No.4 : As per final order for the following: REASONS
35. Issues No.1 to 3 & Adl. Issue No.1: As these issues are interconnected, in order to better appreciation of evidence and to avoid repetition of facts & evidence, I considered these issues together.
36. As I noted earlier, during the pendency of this suit original plaintiff Sri.K.Rajaih died, hence his Legal representatives are brought on record as plaintiff 1(a) & (b). In order to prove the case of the 32 O.S.25413/2008 plaintiff, his Lrs Mr.R.Vijay Krishna has been examined as PW.1 and he filed his examinationin chief by way of affidavit by reiterating entire plaint averments as stated above. In support of his oral testimony, he mainly relied upon Ex.P1 to Ex.P24.
37. On the other hand, in order to substantiate the contention of the contesting defendants, defendant No.5, Mr.Sadagopan Rajamani is examined as DW1 and he filed is examinationinchief by way of affidavit and he further examined two witnesses ie., Mr. N. Shanmuga Singram as DW3, who is one of the attesting witnesses and Mr.K.Venkata Ramani as DW2, who is advocatescribe of disputed WILL dated 27.09.2006 and got documents marked Ex.D1 to D55. 33 O.S.25413/2008
38. On considering the oral coupled with documentary evidence of both parties, at the outset, it is worth to note undisputed facts:
39. It is not in dispute that original plaintiff, Sri. K. Rajaiah is natural brother (younger) of Late.
Sri. K.Kuppaswamy Naidu. S/o. Late.Sri.N.Kodandarama and defendant No.10,
Smt.B.P.J. Vasantha is their sister.
40. It is also not in dispute that, Late.Sri.K. Kuppaswamy Naidu was bachelor and died as such, on 04.03.2007 at his residence situated in the premises of M/s. Chamundeshawi Studios and Laboratory Private Limited at 48 Millers Tank, Bund Road, Bengaluru ie., in schedule 'A' property. 34 O.S.25413/2008
41. It is also not in dispute that, Late.Sri..K.Kuppaswamy Naidu was founder and Managing Director of M/s. Chamundeshawi Studios and Laboratory Private Limited which is situated in suit 'A' schedule property and he was leaving in a residential portion thereof. It is also not in dispute that, suit schedule 'A' to 'H' properties are the estate of deceased Late. Sri.K.Kuppaswamy Naidu Ie.,suit schedule 'A' to 'H' properties are his self acquired properties, so he had every right to dispose of the same as per his will and wish.
42. Now the real controversy between the parties is with respect to administration of estate of the Late.Sri.K. Kuppaswamy Naidu.
43. It is significant to note that original plaintiff Sri.K.Rajiah has instituted this suit in the form of 35 O.S.25413/2008 administrative suit, seeking for passing of preliminary decree in his favour U/o 20 Rule 13 for administration of entire estate of his deceased brother Sri.K.Kuppaswamy Naidu and other consequential relief's by asserting that, his brother Sri.K.Kuppaswamy Naidu died intestate, so he being sole surviving legal heir to Sri.K.Kuppaswamy Naidu, he succeeds entire estate of Sri.K.Kuppaswamy Naidu that is to say suit schedule 'A' to 'H' properties, but the defendants No.1 to 9 who are strangers to suit schedule properties, colluded with defendants No.11 to 17, are obstructing/preventing the plaintiff from administration of estate of the deceased Sri.K. Kuppaswamy Naidu and defendants are also misusing the suit schedule properties, based on created WILL dated 27.09.2006 which is said have been executed by Late.Sri.K. Kuppaswamy Naidu. Infact the said Sri.K. Kuppaswamy Naidu had no intention and capacity to 36 O.S.25413/2008 execute such WILL, because he was not having sound state of mind to execute WILL, because he was suffering from ischemic heart disease and urinary track infection, so his mental and physical health were deteriorated for the last few years moreover he was aged about 81 years, so taking the undue advantage of illhealthy and oldage of the said Sri. K. Kuppaswamy Naidu,defendant No.4 to 9 who claim to be care takers of Sri.K. Kuppaswamy Naidu and defendant No.1 to 3, who claim to be executors, colluded together and created disputed WILL dated 27.09.2006 with an intention to grab entire property of Late.Sri. K. Kuppaswamy Naidu.
44. It is further case of the plaintiff that in the said WILL only some properties are shown in the name of plaintiff, (Mr. Rajaih) and his son Mr. Vijaya Krishna to make it appear as if WILL is genuine but it is only eye wash to cover of the ulterior motive of the 37 O.S.25413/2008 defendants to grab entire properties or atleast major portion of properties of Late.K. Kuppaswamy Naidu. So, the said WILL is created and concocted. So, based on said created WILL defendants No.1 to 9 are misusing the properties of Late.K. Kuppaswamy Naidu.
45. So, decree is to be granted in his favour for administration of estate of the Late. Kuppaswamy Naidu.
46. As I have already pointed out, during the pendency of the suit, original plaintiff Sri. K. Rajaiah died, hence his legal heirs are brought on record, so they continued by seeking for decree in their favour for administration of estate of the deceased Sri. K. Kuppaswamy Naidu.
47. Per contra, contesting defendants No. 4 to 9 and 11 and 16 mainly contended that, Late. Sri. 38 O.S.25413/2008 Kuppaswamy Naidu, when he was in sound state of mind, he executed registered WILL dated 27.09.2006 (as per Ex.D30) by bequeathing his properties and in the said WILL he appointed defendants No.1 to 3 as executors of his estate and defendants No.4 to 9 are beneficiaries/legatees under the WILL and even the original plaintiff, Mr.K.Rajaih and his son Sri. R. Vijaya Krishna are also beneficiaries/legatees under the said WILL, so the defendants No.1 to 3 being executors under the said WILL, they are administrating the estate of Late. Sri.Kuppaswamy Naidu, as per WIIL and wish of the deceased Late. Sri.Kuppaswamy Naidu and they have already distributed the properties to the beneficiaries as per WILL. So, under such circumstances, when deceased has appointed executors under the WILL, question of issuing letter of administration to the plaintiffs or granting decree in their favour for administration of estate of the Late. 39 O.S.25413/2008 Sri.Kuppaswamy Naidu does not arise. Hence suit is liable to be dismissed.
48. So on considering the rival contentions of the parties, it is crystal clear that, plaintiffs are seeking decree for administration of estate of the deceased Sri. Kuppaswamy Naidu by way of succession. On the other hand, defendant No.1 to 3 contended that, they are entitled to administrate the estate of deceased based on disputed WILL dated 27.09.2006 as executors.
49. So, under such circumstance it is worth to note well settled law that, "WILL" deviates natural succession or obstructs inheritance of the property, at this juncture it is also worth to note Sec.2(a) and (c) &
(h) of Indian Succession Act 1925 defines that, Sec. 2(h) "will"means the legal declaration of the intention of a testator with respect to his property which he 40 O.S.25413/2008 desires to be carried into effect after his death.
(a) "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;
(c) "executor" means a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided.
50. So, from the above definitions, it is obvious that when executor is appointed by testator under the WILL to administrate properties of deceased, then court need not appoint administrator or grant decree of administration or letter of administration in favour of plaintiff. So, entire controversy centers around the due execution and genuinenity and enforceability of the disputed WILL dated 27.09.2006, so if defendants are able to prove due execution and genuinenity of the WILL as required under law, then the 41 O.S.25413/2008 administration of estate of the deceased will be governed, as per disputed WILL dated 27.09.2006 otherwise, plaintiffs being nearest legal heirs of deceased Sri.K.Kuppaswamy Naidu will be entitled for decree of administration, as specified under section 218 of Indian succession Act 1925.
51. Hence, I am of the opinion, to clinch the issues, firstly, it is just and proper to considered Additional Issue No.1 which is pertaining to due execution and genuineness of the WILL dated 27.09.2006, which is purported to be executed by deceased Sri. K. Kuppaswamy Naidu.
Arguments of learned counsel for plaintiff,
52. Whereas, learned senior counsel Sri. S.G.B. for plaintiffs vehemently argued in his oral arguments as well as written arguments that, Ex.D30 disputed WILL is concocted document by the defendants No.1 to 42 O.S.25413/2008 9, infact Late.Sri. Kuppaswamy Naidu had no intention and capacity to execute disputed WILL that too in the age of 82 years, moreover, he was physically and mentally weak, so he was not in sound state of mind to dispose of his properties by executing WILL because he was suffering from illhealth that is to say he was not able to even walk for while due to arthritis and heart ailment and he was also suffering from untreated cataract (eye problem). So, his vision was so poor, so he needed assistance even to put his signature on any document, that is to say, if somebody point out the location by putting his finger in the location, then only he was able to sign on document. So, taking undue advantage of old age and illhealth of Sri.K. Kuppaswamy Naidu, defendants No.1 to 9 colluded with DW2 & DW3, they used undue influence on Sri. Kuppaswamy Naidu and mis represented the facts and obtained signatures of Sri.K.Kuppaswamy Naidu on 43 O.S.25413/2008 disputed WILL by misrepresenting the fact that said document is some other document.
53. Learned counsel for plaintiff further assailed on validity and genuineness of disputed WILL on following grounds.
a) WILL does not satisfy the legal requirements.
b) No attesting witnesses to said WILL as specified U/sec. 63 of Indian Succession Act. Whereas, witnesses shown in the WILL are only normal witnesses for registration purpose of the WILL.
c) WILL is not proved in accordance with Sec. 68 of Indian Evidence Act.
d) Rule of best evidence is not followed that is to say treating doctoris not examined to prove sound and disposing state of mind of Sri.K.Kuppaswamy Naidu, at the time of execution of said WILL.
e) Execution of WILL is surrounded by so many suspicious circumstances like., 44 O.S.25413/2008 I. Disinheritance of legal heirs.
II. Unfair distribution of properties . III. WILL is not produced from proper custody that is to say, WILL is not produced by attesting witnesses and WILL is not produced in proper mode and time as specified U/o 8 Rule 1(a) of CPC.
f) Major beneficiary of disputed WILL ie., D4, Smt. Rajalakshmi is not examined.
g) disputed WILL is out come of undue influence and Misrepresentation of facts made by D1 to D9 to get signatures of testator Sri.K.Kuppaswamy Naidu to WILL, though he was not intended to give effect to the said WILL that is to say signatures affixed by testator on some of the pages of the WILL in blue ink pen and last page is only in black ink etc.,
54. In support of above arguments learned counsel for plaintiff placed reliance upon the judgments of Hon'ble Apex Court as well as Hon'ble High Courts, reported in: 45 O.S.25413/2008
1. AIR 2022 SC 167 (Murthy and Others V/s. C. Saradambal and Others).
2. (2013) 7 SCC 490 (M.B. Ramesh V/s. K.M. Veerage).
3. (2003) 2 SCC 91 (Janki Narayan Bhovi V/s. Narayan Namdeo).
4. AIR 1977 Sc 63 ( Beni Chand (since dead) by L.R.'s Vs. Smt. Kamala Kunwar and Others).
5. ILR 2021 KAR 1559 ( Champa Poojari V/s. Manji Poojarthi and Others).
6. ILR 2006 KAR 4213 ( V.M. Neelakantiah and another V/s. State of Karnataka by Chief Secretary and Others).
Arguments of learned counsel for contesting defendants No.4 to 9 and 16.
55. Whereas, learned counsel for defendants No.4 to 9 vehemently argued regarding maintainability of suit by contending that, as original plaintiff Sri.K.Rajaiah filed this suit in his personal individual capacity seeking for administration of letters with 46 O.S.25413/2008 respect to estate of Late.Sri.K.Kuppaswamy Naidu, so in view of death of original plaintiff, Sri.K.Rajaiah during the pendency of the suit, suit should have been abated because right to seek administration of letter or decree for administration is "right in personam", so right to suit will not survive to present legal heirs of original plaintiff Sri.K.Rajaih, so on this ground alone suit is liable to be dismissed.
56. He further argued that, original plaintiff Mr.Rajaiah and his son ie., PW1 and son of PW1 also beneficiaries under the WILL and also received substantial amount under the WILL, so plaintiff's being beneficiaries under the Ex.D30 WILL, they cannot challenge the said WILL. So, plaintiff cannot seek for administration of letters/decree for administration.
47 O.S.25413/2008
57. He further argued regarding validity, genuineness, enforceability and proof of WILL Ex.D.30 and submitted that, said WILL is last WILL of the testator Late.Sri.K.Kuppaswamy Naidu, who executed the same, when he was sound and disposing state of mind to dispose of his properties. Whereas, the defendants who are propounding the said WILL, have proved the same, in accordance with Sec. 63 of Indian Succession Act and 68 of Indian Evidence Act by removing all legitimate suspicious circumstances surrounded in execution of the said WILL.
58. He further argued, plaintiff knowing very well of the fact that, Sri.K.Kuppaswamy Niadu has executed WILL as per EX.D30 and also given substantial amount to him under the said WILL but the plaintiff without satisfying with the said amount and with his greedy intention to grab entire property of Sri.K.Kuppaswamy Niadu, plaintiff has filed various 48 O.S.25413/2008 suits and proceedings against these defendants, only with an intention to harass them and pressurizes them not to proceed with WILL. So, defendants have filed contempt petition against original plaintiff Mr. Rajaiah before Hon'ble High Court of Karnataka in CCC(Cri)12/2008. In said petition the Hon'ble High Court is pleased to convict the plaintiff and also imposed fine of Rs.2,000/ as per judgment dated 03.07.2019 as reflected in certified copy of said judgment Ex.D47.
59. He further argued that, due to various suits and criminal proceedings filed by original plaintiff Mr. K.Rajaiah against D.4 Smt.Rajalakshmi and her family members, they were compelled to face unnecessary litigations and expenses, so defendant No.4 Smt. Rajalakshmi fedup with proceedings, hence she did not intend to examine herself in the present suit, however she authorized her husband defendant No.5 to depose 49 O.S.25413/2008 on her behalf of, so he is competent witness in civil cases as specified U/sec. 120 of Indian Evidence Act. Hence, nonexamination of D4 Smt. Rajalakshmi is not fetal to the case of these defendants etc,.
60. In support of above contention learned counsel for defendants placed reliance upon the judgments of Hon'ble Apex Court as well as Hon'ble High Courts, reported in:
1. AIR 2006 SC 3608 (Prem Singh Vs.Birbal)
2. AIR 2009 SC 3293 (Bellachi Vs. Pakeeran)
3. 2019 (2) SCC 727 (Jamila Begu Vs. Shami Mohd)
4. 2011 (3) LW 513 (Muruga Uday Vs. Thirumalai Enterprises)
5. AIR 1989 PC 117 (Kunwar Surendra Bahadur Singh Vs. Thakur Behari Singh)
6. 2013 (3) HLR 1443 (Sulender Singh Vs. Pritam)
7. AIR 1978 P & H 98 50 O.S.25413/2008 (Inder Singh Vs. S.Raghbar Singh)
8. 2010 (1) SCC 83 (Grasim Industries Ltd. Vs. Agarwal Steel)
9. AIR 1959 SC 443 (paras 18,20,21 and 22) (V.Venkatachala Iyengar Vs. BN. Thimmajamma and others)
10. 1977 (1) SCC 369 (para 8,9 & 10) (Smt.Jaswant Kaur V.Smt. Amrit Kaur And others)
11. 2009 (3) SCC 687 (paras 14, 15, 16 17 and 19) Bharpur Singh and others V. Shamsher Singh)
12. Civil Appeal No.4270 of 2010 (para 30 Onwards) (Murthy and others VC. Saradambal and others (Reportable) pronounced on 10.12.2021)
13. 2020 SCC ONLINE SC 385 (paras 46, 49, 50, 57 and 77) (Shivakumar and others Vs. Sharanabasappa and others)
14. 2020 SCC ONLINE SC 464 (para 24) (Kavitha Kanwar V. Pamela Mehta and others)
15. 2013 (7) SCC 490 (M. Rameh v. KM. Veerage Urs)
16. 2003 (2) SCC 91 (Janki Narayan Bhoir V. Narayan Namdeo Kadam) 51 O.S.25413/2008
17. ILR 2021 Kar 1559 (Champa Poojari Vs. Narayan Namdeo Kadam)
18. 09.03.2022 (Swaminathan and others Vs. V. Alankamdy(Dead) through LRs.)
19. MANU/DE/0181/2018 (Harjit Singh Vs. Surender Singh and Others).
Ratio decidendi and principle laid down by Hon'ble Apex Court and Hon'ble High Court, regarding proof of WILL.
61. Before appreciation of oral and documentary evidence of the parties with respect to proof of disputed WILL, it is worth to note ratio laid down by Hon'ble Apex Court in the larger bench Judgment, reported in AIR1959 SC 443 (H. Venkatachala Iyanger Vs. B.N. Thimmajamma), (same is subsequently followed by Hon'ble Apex Court in the recent judgment reported in (2022) SCC 209=Live Law 2021 SC 726 (Murthy and 52 O.S.25413/2008 other Vs. C. Sharadambal and others) wherein Hon'ble Court has clearly distinguished the nature of proof required for a testament.
''What is the true legal position in the matter of proof of wills? It is wellknown that the proof of will spresents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under section 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and 53 O.S.25413/2008 it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these 54 O.S.25413/2008 provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would primafacie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or 55 O.S.25413/2008 not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document.
Propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 56 O.S.25413/2008
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature;the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator;the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, 57 O.S.25413/2008 courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it,that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is 58 O.S.25413/2008 required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic,if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
At this juncture, it is also worth to note recent larger bench judgment of Hon'ble Apex Court reported in 2020 SCC online SC385 (Shivakumar & 59 O.S.25413/2008 Others V/s. Sharanabasappa & Others). Wherein it is held that, "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".
62. At this juncture it is also worth to note, ratio laid down by Hon'ble High Court of Karnataka in the judgment reported in ILR 2008 Karnataka 60 O.S.25413/2008 2115 (Sri. J.T. Surappa and another Vs. Satchidhanandendra) (same judgment is followed by the Hon'ble Division Bench in the recent Judgment in R.F.A No.1781/2011 dated 12.11.2020 (N. Venkatesh Vs. N. Krishnayya and others) wherein it is held.
25. It is necessary to bear in mind the settled legal position in so far as proof of Will is concerned.
26. There is one important feature which distinguishes wills from other documents. It is one of the most solemn document known to law. Through it, a dead man entrusts to the living, the carrying out of his wishes. As it is impossible, that he can be called either to deny his signature or to explain the circumstances in which it was made, it is essential that trust worthy and effectual evidence should be given to establish the Will. Therefore, unlike other documents, the Will speaks from the death of the testator. It is ambulatory and it becomes effective and irrevocable on the death of the testator. It is a declaration in the prescribed manner of the 61 O.S.25413/2008 intention of the person making it, with regard to the matters which he wishes to take effect upon or after his death.
27. Therefore, when it is propounded or produced before a Court, the testator who has already departed the world, cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of wills, the Court will start on the same enquiry as in the case of the proof of documents. However, in the case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the court could declare a document styled as "Will" is proved.
28. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps "Pancha Padi" (ಪಪಚ ಪದ). The path of enquiry and steps to be traversed are as under:
62 O.S.25413/2008
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
(2) Whether the natural heirs have been disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?
29. The word 'Will' has been defined under Section 2(h) of the Indian Succession Act, 1925 (for short hereinafter referred to as 'the Act'). Will means "the legal declaration of the intention of the testator with respect to his property which he desires to be carried into after his death". In India everyone is governed by their personal law in so far as inheritance or succession to their property is 63 O.S.25413/2008 concerned. In the absence of a Will the property devolves on the legal heirs in accordance with the said personal law. If there is a will, it comes in the way of the operation of the said law. Therefore, the Will obstructs inheritance of the property. Under the Act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document. This is the First Step.
30. Once the aforesaid legal requirements are satisfied, the Second Step would be to find out whether under the Will, the testator has disinherited the persons who would have inherited or succeeded to his property in the absence of a Will. A Will may be executed by 64 O.S.25413/2008 a person distributing his entire properties to his legal heirs in order to avoid a future dispute. Such distribution may not be equal also. It is quite natural. However, if under a Will the testator were to disinherit a legal heir, in particular his wife and children, then it would be improbable or unnatural, but not invalid. In such circumstances, it is necessary for the Court to find out the reasons for such disinheritance. The reason for such disinheritance sometimes could be found in the Will itself or from extrinsic evidence adduced. Such an exclusion, in the absence of a satisfactory explanation, may also constitute a suspicious circumstance. Therefore, when legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual.
31. The Third Step would be to find out whether the testator was in a sound state of mind at the time of executing the Will. The question of a sound mind is a dominant question in a court of probate. The test to judge a sound disposing mind is not an absurd test. Nor is it the test of a perfectly 65 O.S.25413/2008 healthy and perfect mind. The test of a sound disposing mind is in law a workable test. It is not a hypothetical nor an impracticable test. It is not the test of a psychologist or a psychoanalyst or a psychiatrist who in the modern age, prone to consider all human mind to be inherently unsound by nature and abnormal. Nor, is it the scientific test, which would satisfy the highest technical medical examination. The mental soundness and the physical fitness of the testator is an important circumstance when the testatorial capacity is being scrutinized. In case of weakness of mind arising from near approach of death, strong proof is required that the contents of the will were known to the testator and that it was his spontaneous act. It is settled law that, the propounder has to show by satisfactory evidence that the Will was signed by the testator and at the relevant point of time he understood the nature and effect of the dispositions and put his signature to the document of his own free will. The real test in all cases of this kind is, whether the testator had a proper appreciation or comprehension of his act. 66 O.S.25413/2008
32. Thereafter, the Fourth Step would be to find out whether there exists any suspicious circumstance surrounding the execution of the Will. "A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person or does not express the mind of the testator." The fact that the Will is unnatural, unreasonable and improper, calls for close examination. What is a suspicious circumstance depends on the facts of each particular case. There is no hard and fast rule. Several well recognised circumstances which are recognised over the years are only a pointer in this direction. They are, propounder taking a prominent role in the execution of a Will which confers substantial benefit on him; Will executed by a dying person or a person nearer to death or when the testator was physically and mentally feeble and near his end; The Will containing shaky signatures and not registered. A feeble mind likely to be influenced; Unfair and unjust disposal of property; Disinheriting the natural legal heirs without any reason; The testator's 67 O.S.25413/2008 intellect impaired or weakened by age or illness; The testator being a literate person putting his thumb impression on the Will; Marked variances between the signatures found at different places in the Will; The Will which has not seen the light of the day for a considerable period from the date of death of the testator; Incorrect recitals in the Will; Will written in a language which is unknown to the testator, etc., The evidence in support of the instrument must pass the test of jealous scrutiny. The suspicion so stirred is to be removed by clear proof, as regards the sound disposing mind of the testator being free from undue influence. Where 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. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.
33. The last and Fifth Step is to consider whether the Will that is executed is in 68 O.S.25413/2008 accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The will is a document required by law to be attested. The execution of will must include both execution and attestation. "Attestation" and "execution " are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail. In case of documents, which are compulsorily attestable, execution means some thing more than mere signing. It includes delivery and signing in the presence of witnesses or on personal acknowledgment of execution by executant. It includes the whole series of acts of formalities which are necessary to give the document validity.
34. Section 63 of the Act deals with execution of unprivileged Wills. It prescribes three rules which have to be satisfied before the Court can declare that the Will is duly executed. Evidence should be adduced to show that the testator has signed or affixed his mark to the Will. The said signature or mark of the 69 O.S.25413/2008 testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing and lastly the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark 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. Therefore, the Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affix his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that 70 O.S.25413/2008 both of them should be present at the same time.
35. Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63(c) of the Act. Therefore, the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whether such a Will is registered or not registered, in the eye of law it makes no difference. Even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law.
36. It is only after the court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in 71 O.S.25413/2008 accordance with law, as such it is valid and enforceable.
Appreciation/analyzing the evidence and arguments of both parties .
63. So, in the light of above ratio, if Ex.D.30, which is original registered WILL dated 27.09.2006 is perused, it is obvious that, it is reduced into writing/typed, signed by testator Late.Sri. K. Kuppaswamy Naidu and same is attested by two witnesses namely., Dr. V.M. Jayapalan and Sri. N.Shanmugha Singaram and one of the attesting witnesses Ie., Sri. N.Shanmugha Singaram is called and examined as DW3 to prove the WILL. So, I am of the opinion that, prima facie, requirements of (first step) valid WILL are fulfilled.
72 O.S.25413/2008
64. Attestation and proof of the WILL as per Sec. 63 of Indian Succession Act and Sec. 68 of Evidence Act.
(For ready reference Sec. 63 of Indian Succession Act and Sec. 68 of Evidence Act are herewith reproduced) Sec. 63 Execution of unprivileged wills-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the 73 O.S.25413/2008 testator sign 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 acknowledgment of his signature or mark, or of 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.
Section 68 of The Indian Evidence Act,1872 Sec. 68 Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any 74 O.S.25413/2008 document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
65. Herein this case, in order to prove the Ex.D.30 WILL, the defendants No.4 to 9 and D.16 who are propounding the WILL, on their behalf, they have examined defendant No.5 Sri. Sadagopan Rajamani as DW1 and he deposed in his evidence regarding execution of WILL by Sri.K.Kuppaswamy Naidu, when he was sound state of mind and he further deposed regarding as to how he and other defendants No.4 to 9 were closely related to deceased Sri.K.Kuppaswamy Naidu that is to say he deposed that Sri.K. Kuppaswamy Naidu was the son of sister of Late Mr. Sriramalu Naidu, that is to say Mr. Late Sriramalu Naidu was maternal uncle of Sri.K.Kuppaswamy Naidu 75 O.S.25413/2008 and said Mr. Sriramalu Naidu was running M/s. Pakshi Raj Studios private limited at Coimbator and Smt. Seethammal was leaving with said Late.Mr. Sriramalu Naidu as his junior wife and said Late.Smt. Seethammal had a sister namely Smt. Padma Rajamani, ie., defendant No.8, who is his mother and defendant No.9 Sri. Rajamani Jaganathan is his father. He further deposed that, defendant No.4 Smt. Rajalakshmi is his wife and defendant No.6 Smt. R.S. Gayithri Tamizharasan is his daughter and Defendant No.7 is husband of defendant No.6.
66. It is important to note, though the plaintiff contended that, defendant No.4 to 9 are strangers to family of Sri.K.Kuppaswamy Naidu but PW1 in his crossexamination, at page No.18 he clearly admitted above stated relationship among the Sri.K.Kuppaswamy Naidu and defendants No.4 to 9. 76 O.S.25413/2008
67. DW1 further deposed that, in the year 1969 as Sri. Sriramalu Naidu suffered loss in his studio business at Coimbatore, he sold assets and liabilities of said M/s. Pakshiraj Studio to M/s. Chamundeshwari Studios and came to Bangaluru with his wife Smt. Seethammal, so he (DW.1) and his wife (DW.4) also came to Bengaluru with Sri. Sriramalu Naidu and Smt. Seethammal and started to live with Sri.K.Kuppaswamy Naidu in a rented house. He further deposed that, after death of Sri. Sriramalu Naidu, Sri.K.Kuppaswamy Naidu was taking care of Smt. Seethammal as she had helped him financially and morally in his business. Thereafter these defendants were taking care of Sri.K.Kuppaswamy Naidu and assisting him in his business and he also affixed his signatures as a witness to the documents Ex.D23 & 24 which are sale deeds executed Sri.K.Kuppaswamy Naidu, so Sri.K.Kuppaswamy had 77 O.S.25413/2008 trust upon them in all aspects. So, out of said love and affection he bequeathed some of the properties in his name and in the name of his wife Smt. Rajalakshmi and his daughter Smt. R.S. Gayithri, along with other defendants No.16 under WILL EX.D30.
68. He further deposed regarding intention and reasons for execution of Ex.D30 WILL by Sri.K.Kuppaswamy Naidu that is to say, Plaintiff and his family members deserted the Sri.K.Kuppaswamy Niadu when he needed care utmost and Sri.K.Kuppaswamy Niadu's dissatisfaction towards behavior of Mr. Vijayakrishna (PW1). He further deposed regarding intention of Sri.K.Kuppaswamy to executed WILL that is to achieve aim and objects of KK public and charitable trust created by Sri.K.Kuppaswamy Niadu and to continue his ambition of performing pooja and temple rituals of Goddess 78 O.S.25413/2008 Sri.Rajarajeshwari temple Rajarajeshwarinagar, hitherto he was doing and to settle his personal and company liabilities ie., to safe guard the interest of his company Sri. Chamundeshwari Studio and Lab Private Limited and to distribute properties as per his will and wish and finally his intention to give effect to his WILL, after his death.
69. It is significant to note that, learned counsel for plaintiff argued that, no evidenciary value can be attached to the evidence of DW1 because, he is not competent witness to depose on behalf of other defendants more particularly defendant No.4 Smt. Rajalakshmi, who is major beneficiary under the disputed WILL, so nonexamination of defendant No.4/with holding the best evidence of D4 is fetal to the case of defendants etc,.
79 O.S.25413/2008
70. Having regarding to the arguments of learned counsel for plaintiff, it is important to note, on perusal of Sec. 120 of Indian Evidence Act, it is crystal clear that "In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses".
71. So, in the light of above section, if the present facts are analyzed, admittedly, DW1 Mr. Sadagopan Rajamani is the husband of D4 Smt. Rajalakshmi, so I am of the opinion that, he is a competent witness to depose on behalf of his wife D4, who is also party to the present suit. Moreover, nothing is elicited in the crossexamination of DW1 to discard his evidence, hence, I don't find any force in the arguments of learned counsel for plaintiff.
72. It is important to note, in order to prove WILL Ex.D30, as specified U/sec. 63 of Indian 80 O.S.25413/2008 Evidence Act and 68 of Indian Evidence Act, the propounder of the WILL, has called one of the attesting witness to the WILL ie., Mr. Shanmugham Singaram and examined as DW3.
73. Whereas, DW3 in his evidence, he deposed that, he has been working as a Employee in Karur Vaishya Bank Limited and he is well acquainted with Late.Sri.Kuppaswamy Naidu because his father Late.Natarajan (defendant No.1) and Late.Sri.Kuppaswamy Naidu were close friends, since several decades and both were devotees of Godess, Sri. Rajarajeshwari Temple, Kenchanahally (Rajarajeshwari Nagar, Bengaluru).
74. He further deposed that, in the year 2006, one day, in the evening his father S.Natarajan told him to meet Sri.K.Kuppaswamy Naidu at his residence as Sri.K.Kuppaswamy Naidu asked him to meet him, 81 O.S.25413/2008 accordingly in the next day morning he went and met Sri.K.Kuppaswamy Naidu at his residence ie., in his room, at that time he found other two persons, one is Dr. Jayapalan, who was personal doctor of Sri.K.Kuppaswamy Naidu (he is another attesting witness) and another person is advocate of K.Kuppaswamy Niadu, ie., DW2. At that time, the said Sri.K.Kuppaswamy Naidu informed him that he was going to execute his last and final WILL with respect to his properties and he requested him to sign as one of the attesting witness to the said WILL, so he agreed for the same.
75. He further deposed that, the said Sri.K.Kuppaswamy Naidu, affixed his signatures on the said WILL in his presence and also in presence of another attesting witnesses Dr. Jayapalan and his Advocate. Thereafter, as per instruction of Sri.K.Kuppaswamy Naidu, he and another attesting 82 O.S.25413/2008 witness and advocate went to SubRegistrar Office at Shivaji Nagar SubRegister Office, in a taxi arranged by K.Kuppaswamy Naidu because K.Kuppaswamy Naidu was not able to attend SubRegister Office due to some problem in his legs to move out side and in the said SubRegister Office, they affixed signatures to said WILL, then they came back to house of Sri.K.Kuppaswamy Naidu along with SubRegistrar (because attendance at private residence facility had availed for registration) and in the house of Sri.K.Kuppaswamy Naidu, SubRegistrar asked the Sri.K.Kuppaswamy Naidu regarding contents of the WILL and it's execution by him and after confirmation from the Sri.K.Kuppswamy Naidu, the SubRegistrar endorsed the same and he also obtained LTM as well as his signature on said WILL in their presence, photo of the said Sri.K.Kuppaswamy Naidu was also affixed to the one of the page of the WILL and obtained 83 O.S.25413/2008 signature of Sri.K.Kuppaswamy Naidu to said page in their presence and thereafter, he and another attesting witness affixed their signatures to the said WILL, in presence of Sri.K.Kuppaswamy Naidu, as per his instructions and SubRegistrar also affixed his signature to the said WILL and advocate who was present also affixed his signature to the said WILL.
76. He further deposed that, at the time of execution of above stated WILL Sri.K.Kuppaswamy Naidu was in sound state of mind and he had understood his acts.
77. He further clearly identifies signatures of Sri.K.Kuppaswamy Naidu on Ex.D30 WILL, which are marked as Ex.D.30 (a) to (w) and his signatures are marked as Ex.D30 (aa, ab & z).
84 O.S.25413/2008
78. As I have already stated, learned counsel for plaintiff argued that, DW3 and another witness Dr. V.M.Jayapalan are not attesting witnesses, as specified U/sec. 63 of Indian Succession Act, at the most, they can be considered as witnesses only for the purpose of registration of disputed WILL, moreover DW3 is admittedly son of defendant No.1, S.Natarajan, who is shown as one of the executors in the disputed WILL, so it shows that, defendant No.1 and his son ie., DW3 colluded with other defendants and created the disputed WILL. Moreover propounders of the disputed WILL deliberately not examined the another witness Dr.V.M. Jayapalan. So, it shows that, propounders intentionally with held the best evidence, hence adverse inference has to be drawn against propounders and no evidentiary value can be attached to the evidence of DW3. So, WILL is not proved in accordance Sec. 63 of Indian Succession 85 O.S.25413/2008 Act and Sec. 68 of Indian Evidence Act. In support of his arguments, he placed reliance upon judgment of Hon'ble Apex Court reported in (2003) 2 SCC 91.
79. Having regarding to the arguments of learned counsel for plaintiff, at this juncture, it is worth note definition of attestation as defined U/sec. 3 of Transfer of Property Act which reads as follows: Section 3 of the Transfer of Property Act, 1882
3. Interpretation clause.--In this Act, unless there is something repugnant in the subject or context,xxxxx-- "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom 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 acknowledgment of his signature or mark, 86 O.S.25413/2008 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;
80. So, On perusal of definition given in Sec. 3 of TP Act , it is almost similar to Sec. 63 (c) of Indian Succession Act, hence on combined reading of both sections one thing is clear that, attesting means signing a document/WILL for the purpose of testifying the signature of the executant/testator in his presence.
81. So, herein this case, as I have already pointed out that, DW3, who is attesting witness clearly deposed that, firstly testator Sri.K.Kuppaswamy Naidu affixed his signatures to Ex.D.30 WILL in his presence and in presence of 87 O.S.25413/2008 another attesting witness Dr. V.M. Jayapalan, at a time and they have seen the testator affixing signatures to Ex.D30 thereafter he and another attesting witness affixed their signatures by testifying the signatures of Sri.K.Kuppaswamy Naidu in presence of Sri.K.Kuppaswamy Naidu himself. So, it is clear that, both attesting witnesses and testator Sri.K.Kuppaswamy Naidu affixed their signatures in reciprocal manner one after another, in presence of each other. It is further significant to note that, DW3 further deposed that, Sri.K.Kuppaswamy Naidu was in sounds state of mind, while affixing his signatures to Ex.D30 WILL and he was well aware what he was doing. DW3 further deposed that, Sri.K.Kuppaswamy Naidu affixed his signatures to Ex.D30 on his own free will and wish.
Credibility of evidence of DW3.
88 O.S.25413/2008
82. On considering the evidence of DW3, a crucial question arises as to whether his evidence is trustworthy and court can safely rely upon, because while proving the WILL evidence of attesting witness is very crucial for the reason that, when WILL is propounded or produced before the court, by the time, the testator who has already departed the world cannot say, whether it is his WILL or not, as observed by Hon'ble Apex Court in the judgment referred supra.
83. It is significant to note, admittedly DW3 and his father defendant No.1 S.Natarajan were well known to Sri.K.Kuppaswamy Naidu, so under such circumstance, I am of the opinion, it is quite natural to get the presence of DW3 as attesting witness to EX.D.30 by Sri.K.Kuppaswamy Naidu.
84. It is important to note that, on perusal of Ex.D9 which is undisputed registered Public 89 O.S.25413/2008 Charitable Trust Deed dated 21.09.2005 executed by very Sri.K.Kuppaswamy Naidu, at undisputed point of time (this document is also admitted by PW1 in his crossexamination, when Ex.D9 is confronted to him), in this trust deed also, the very DW3 and Dr.V.M.Jayapalan are the witnesses and said trust deed also got registered like., present WILL Ex.D30 by availing Subregistrar attendance at private residence of Sri.K.Kuppaswamy Naidu as specified U/sec. 56 to 58 of Karnataka Registration Rules 1965. So this evidence shows that, Sri.K.Kuppaswamy Naidu used to invite DW3 and Dr.V.M.Jayapalan as witnesses to his documents.
85. It is important to note that, though learned counsel for plaintiff has cross examined the DW3 nothing is elicited to discard his evidence. Hence, I am of the clear opinion that, DW3 is attesting witness to Ex.D30 WILL as defined U/sec. 3 of TP Act and Sec. 90 O.S.25413/2008 63 (c) of Indian Succession Act, and on considering the entire evidence of DW3, it inspires confidence of the court to accept the trustworthy of his evidence, hence I am of the opinion that, his evidence can be safely relied upon and come to conclusion that Ex.D30 WILL is duly attested as per Sec. 63 of Indian Succession Act. Hence, arguments of learned counsel for plaintiff that, DW3 is only normal witness for registration purpose, cannot be accepted. Hence I don't find any force in the arguments of learned counsel for plaintiff.
Signatures of Sri.K.Kuppaswamy Naidu found on Ex.D30 WILL.
86. It is further important to note that, plaintiffs are not disputing the signatures of Sri.K.Kuppaswamy Naidu on Ex.D30 WILL, whereas they only contended that, defendants No.1 to 9 obtained signatures of Sri.K.Kuppaswamy Naidu on 91 O.S.25413/2008 Ex.D30 by making undue influence and mis representing the facts to him.
87. It is pertinent to note, though learned counsel for plaintiff argued regarding undue influence and misrepresentation of facts but there are no specific pleadings to that effect as mandated U/o 6 Rule 4 of CPC and there is no proof to that effect. So, in absence of specific pleadings and proof, mere arguments of learned counsel for plaintiff that signatures of Sri.K.Kuppaswamy Naidu found on Ex.D30 WILL are obtained by undue influence and misrepresentation of facts cannot be accepted. Even otherwise, on perusal of Ex.D15 which is final report submitted by Central Bureau of Investigation (CBI) Branch, Bengaluru to Hon'ble Special Judge for CBI Cases, Bengaluru, wherein, opinion of handwriting expart ie., directorate of Forensic Science, Ministry of Home Affairs, 92 O.S.25413/2008 Government of India, Ramanathpura, Hyderabad, is obtained, wherein the expart compared the signatures of Sri.K.Kuppaswamy Naidu found on Ex.D30 WILL with other undisputed signatures of Sri.K.Kuppaswamy Naidu found on other documents and opined that the said signatures are tallied.
88. It is further significant to note, even though plaintiff is not disputing the signatures of Sri.K.Kuppaswamy Niadu found on Ex.D30 WILL but for the satisfaction of the court itself, by invoking Sec. 73 of Indian Evidence Act, if this court compares the signatures of Sri. K.Kuppaswamy Naidu found on Ex.D30 WILL with admitted/undisputed signatures of Sri.K.Kuppaswamy Naidu found on other documents ie., Ex.D8 appointment letter of PW1 issued by Sri.K.Kuppaswamy Naidu and Ex.D19 to 24 with 93 O.S.25413/2008 necked eyes it can be easily stated that, they are talieing.
89. Apart from above evidence, it is important to note, even from the direct evidence of DW3, who is attesting witness, who has directly seen the act of signing by Sri.K.Kuppaswamy Naidu on Ex.D30 WILL, clearly identified the signatures of Sri.K.Kuppaswamy Naidu found on Ex.D30 WILL. So, from all these evidence, it is crystal clear that, signatures found on Ex.D30 WILL are belong to Sri.K.Kuppaswamy Naidu.
90. Coming to evidence of DW2 Sri.K.Vekataramani, advocate scribe of Ex.D30 WILL, he deposes that, he has been practicing advocate in Bengaluru, as associate with Law Firm namely M/s. N. Jayaraman Company Law Advocates and they were looking after the company matters of Sri. 94 O.S.25413/2008 Chamundeshwari Studio and Lab Private Limited for which Sri.K.Kuppaswamy Naidu was Managing Director, so in that connection, he and Sri.K.Kuppaswamy Naidu were well acquainted with each other, so said Sri.K.Kuppaswamy Naidu used to discuss his professional as well as personal matters with him and also getting his opinions.
91. He further deposed that, in the month of September 2006 Sri.K.Kuppaswamy Naidu asked him to come over to his house situated adjacent to above stated Sri.Chamundeshwari Company to discuss about his personal matters and while discussing, he expressed his willingness to execute his last WILL, accordingly, he instructed him to draft and get it registered. He further deposed that, Sri.K.Kuppaswamy Naidu had handed over his own handwritten/manuscript draft of the WILL which is to be prepared by him and he also handed over some 95 O.S.25413/2008 sketchs which are to be prepared and he instructed him to get the manscript typed confidentially. So, as per his instructions and draft, he got typed/drafted the WILL. He further deposed that, as Sri.K.Kuppaswamy Naidu was suffering from Arthritis. So he was unable to climb stair cases, so he applied for private attendance of SubRegistrar, Shivaji Nagar to attend the house of Sri.K.Kuppaswamy Naidu for registration purpose as per instruction given by Sri.K.Kuppaswamy Naidu.
92. He further deposed that, after arrival of Sub Registrar to the house of Sri.K.Kuppaswamy Naidu, in his presence as well as presence of attesting witnesses, the SubRegistrar asked few questions to said Sri.K.Kuppaswamy Naidu to ascertain whether he has executed the said WILL on his own free will and wish and also he asked him regarding the contents of the WILL, whereas Sri.K.Kuppaswamy Naidu after going 96 O.S.25413/2008 through the said WILL, he asked the Subregistrar to register the WILL, so SubRegistrar proceeded to register the said WILL by following formalities and procedure and he affixed pass port size photo of Sri.K.Kuppaswamy Naidu to said WILL which was given by Sri.K.Kuppaswamy Naidu and instructed the Sri.K.Kuppaswamy Naidu and witnesses to affix their signatures to the last page and back side of the another page of the said WILL in black ink pen, as per regular practice in registration, accordingly Sri.K.Kuppaswamy Naidu signed to the last page of the said WILL before SubRegistrar and attesting witnesses, then the SubRegistrar asked the Sri.K.Kuppaswamy Naidu to sign again on the backside of printed column in some of pages in the WILL in black ink pen as per registration procedure, accordingly, Sri.K.Kuppaswamy Naidu once again signed on said WILL on the backside of printed form. Thereafter, the attesting witnesses also 97 O.S.25413/2008 once again affixed their signature in black ink pen on the last page and back side of the another page, thereafter he signed to said WILL in black ink pen as scribe. Thereafter, the SubRegistrar also signed the said WILL, in his presence as well as in presence of Sri.K.Kuppaswamy Naidu and attesting witnesses.
93. He further deposed that, Sri.K.Kuppaswamy Naidu executed said WILL, while he was in sounds state of mind and also after understanding the consequences of said WILL.
94. He further deposes that, after registration of the said WILL, within a month Sri.K.Kuppaswamy Naidu called him to his residence, at that time, the executors were also present in his house, so he informed him that, the District Registrar had not taken the said WILL for the safe custody for the reason that said WILL has already registered and same cannot be 98 O.S.25413/2008 kept in the safe custody of Registrar, hence the said Sri.K.Kuppaswamy Naidu handed over the original WILL along with some other documents, bonds to executors and instructed them to execute as per WILL after his demise.
95. It is significant to note, admittedly this witness is also son of defendant No.3 Sri.N. Kannan, who is also one of the executors of the disputed WILL and close friend of Sri.K.Kuppaswamy Naidu.
96. It is further important to note, though the learned counsel for plaintiff crossexamined this witness at length, by suggesting that, Sri.K.Kuppaswamy Naidu was availing the service of senior advocates for his personal and professional matters and Sri.K.Kuppaswamy Naidu had not executed WILL in his presence etc., but this witness denied all his suggestions and withstood in the cross 99 O.S.25413/2008 examination, moreover nothing is elicited to discard his evidence.
97. It is important note that, it is not in dispute that, DW2 is practicing advocate having acquaintance with Sri.K.Kuppaswamy Naidu. The evidence also reveals that, Sri.K.Kuppaswamy Naidu was availing his service for his company matter. So, I am of the opinion it is quite natural to get his legal assistance by Sri.K.Kuppaswamy Naidu for preparation of Ex.D30 WILL, so I am of the opinion that, there is no reason to doubt about veracity of DW2. So, court can safely rely upon his evidence.
Affixing signatures with an intention to give effect to the writing as WILL.
98. So, on considering the direct evidence of DW3 attesting witness & DW2scribe and on perusal of Ex.D30 WILL, it is obvious that, testator 100 O.S.25413/2008 Sri.K.Kuppaswamy Naidu affixed his signatures at the bottom of each page of the WILL that is to say immediately after completion of contents of the each page without leaving any unreasonable space/gaps to create any doubt and also at the last page of the WILL, on the caption of "TESTATOR" and he also affixed his signature and LTM mark on the back side of the page No.7 of the WILL, where SubRegistrar has affixed his signature on the passport size photo of the Sri.K.Kuppaswamy Naidu and made endorsement. Moreover DW2 & DW3 are also clearly deposed, the same fact that, testator Sri.K.Kuppaswamy Naidu affixed his signature in the last page and back side of the page No.7 in a black ink pen as instructed by Sub Registrar. So, from above evidence, it is crystal clear that, testator Sri.K.Kuppaswamy Naidu's has affixed his signatures at appropriate/specified places with an intention to give effect to the writing 101 O.S.25413/2008 as a WILL, as specified U/sec. 63 (b) of Indian Succession Act.
99. Whereas, learned counsel for plaintiff argued that, the signatures of Sri.K.Kuppaswamy Naidu found on Ex.D30 WILL creats doubt regarding prompt execution of the said WILL because some of the signatures are in blue ink pen and signature found in last page and back side of the 7th page are in black ink, so it creates doubt etc.,
100. Having regarding to the arguments of learned counsel for plaintiff, at this juncture, it is worth to note, on perusal of undisputed original documents executed by Sri.K.Kuppaswamy Naidu at undisputed point of time ie., Ex.D19 deed of cancellation of tripartite agreement, Ex.D20 deed of reconveyancess & Ex.D21 one more deed of reconveyance, Ex.D22 cancellation of lease deed clearly show that, 102 O.S.25413/2008 Sri.K.Kuppaswamy Naidu affixed his signatures to said documents in blue ink pen and at the time of registration, for registration procedure, he affixed his signature in black ink pen in the similar way that of EX.D30 WILL. So, it shows recognized practice of signing in black ink pen by the executant and Sub Registrar, while registering the document, so I am of the opinion that, there is no reason to doubt regarding prompt execution of Ex.D30 WILL. Hence, I don't find any force in the arguments of learned counsel for plaintiff.
101. Coming to another arguments of learned counsel for plaintiff that, defendants though took hand summons to examine another witness Dr. V.M. Jayapalan, whom the defendants claims as attesting witness to Ex.D30 WILL, did not examine the said witness for the reasons best known to the defendants, 103 O.S.25413/2008 so nonexamination of Dr.V.M. Jayapalan is fetal in proving of disputed WILL Ex.D30 etc.,
102. Having regarding to the arguments of learned counsel for plaintiff, it is important to note that, Sec. 68 of Indian Evidence Act only mandates to call and examine atleast one of the attesting witness of the WILL to prove the said WILL. Herein this case, As I have already pointed out defendant No.5 has chosen to call Sri. Shanmugha Singharam, who is one of the attesting witness to Ex.D30 WILL and examined him as DW3 and he has satisfactorily deposed regarding attestation of the WILL and it's execution as discussed in the above paras. So, under such circumstances, I am of the opinion, defendants have complied U/Sec. 68 of Indian Evidence Act, in proving the WILL, at this juncture, it is worth to note observation made by Hon'ble Apex Court in above referred H. 104 O.S.25413/2008 Venkatachala Iyanger V/s. B.N. Thimmajamma case, wherein it is observe that, "Generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty". So under such circumstances, I am of the opinion, when one of the attesting witness DW3 has satisfactorily deposed regarding attestation and execution of the WILL, then nonexamination of another attesting witness Dr.V.M. Jayapalan is not fetal in proving of said WILL. Hence, I don't find any force in the arguments of learned counsel for plaintiff.
103. So, in view of above discussion, I am of the clear opinion that, execution of Ex.D30 WILL is proved to the satisfaction of the court in 105 O.S.25413/2008 accordance with Sec. 63 of Indian Succession Act and Sec. 68 of Indian Evidence Act.
104. Sound and disposing state of mind of testator of the WILL ie., Testamentary capacity of Sri.K.Kuppaswamy Naidu to execute Ex.D30 WILL.
105. As I have already stated, learned counsel for plaintiff vehemently argued that, at the time of disputed WILL, testator Sri.K.Kuppaswamy Naidu was not in sound and disposing state of mind due to his old age of 82 years and his illhealth. So, he had no testamentary capacity to execute disputed WILL, he further argued that, the defendants intentionally have not chosen to examine Dr. P.L.Prabhakaran, who was treating the Sri.K.Kuppaswamy Naidu, by knowing very well that, if the said Dr. P.L.Prabhakaran had examined, then definitely he would have stated the 106 O.S.25413/2008 mental capacity of said Sri.K.Kuppaswamy Naidu that he was not having sound state of mind etc., So, the defendants have with held the best possible evidence. Hence, adverse inference has to be drawn against them etc,.
106. Having regarding to the arguments of learned counsel for plaintiff, it is important to note that, in the judgment of Hon'ble High Court, in Sri. J.T.Surappa case referred supra, it is clearly stated that, "To find out whether the testator was in a sound state of mind at the time of executing the Will. The question of a sound mind is a dominant question in a court of probate. The test to judge a sound disposing mind is not an absurd test. Nor is it the test of a perfectly healthy and perfect mind. The test of a sound disposing mind is in law a workable test. It is not a hypothetical nor an impracticable test. It is not the test of a psychologist or a 107 O.S.25413/2008 psychoanalyst or a psychiatrist who in the modern age, prone to consider all human mind to be inherently unsound by nature and abnormal. Nor, is it the scientific test, which would satisfy the highest technical medical examination".
At this juncture, it is also worth to note Sec. 59 of Indian Succession Act, which reads as fallows: Sec. 59. Person capable of making wills-- Every person of sound mind not being a minor may dispose of his property by will. Explanation1--A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation2--Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
108 O.S.25413/2008
Explanation3--A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation4--No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to 109 O.S.25413/2008 the proper mode of disposing of his property, makes a will. This is a valid will.
107. So, on considering the above ratio and Ilustration No.III of Sec. 59 of Indian Succession Act, it is clear that, even old age and illhealth will not debar the major person to make a valid WILL, if he is capable of understanding the nature of instrument and it's effect and even deaf or dumb or blind can make WILL, if they are able to know what they do it. So, in order to prove sound and disposing state of mind, medical evidence or psychiatrist report or scientific test is not required, whereas, test required is usual test of the satisfaction of prudent man in given circumstances.
110 O.S.25413/2008
108. Herein this case admittedly, Sri.K.Kuppaswamy Naidu was aged about 81 or 82 years, at the time of execution of disputed WILL Ex.D30 and he was suffering from age related deceases like., heart problem and arthritis, so he was not able to move freely. So, under such circumstance, a crucial question arises as to whether Sri.K.Kuppaswamy Naidu was having sounds state of mind to execute WILL, inspite of his old age and illness.
109. In order to ascertain, as to whether Sri.K.Kuppaswamy Naidu was in sound and disposing state of mind to execute the WILL, in addition to recitals of the WILL, direct evidence of DW2 & DW3 and some date of events and some circumstances assumes greater importance because Sec. 14 of the Indian Evidence Act describes that, "Facts showing existence of state of mind or bodily feeling, the events and circumstances accord shortly before or after the 111 O.S.25413/2008 incidents are relevant facts as illustrated in illustration (k & m) of Sec. 14 that is to say the events and circumstances took place shortly before or after execution of the disputed WILL EX.D30 are relevant, which are shown as follows: Date of events
1.Death of Sri.K.Kuppaswamy Naidu EX.D29 04.03.2007
2. Last Cheque issued by Sri.K.Kuppaswamy Naidu Ex.D10 28.02.2007
3. disputed WILL Ex.D30 27.09.2006
4. Letter addressed to KSFC by Sri.K.Kuppaswamy Naidu (Ex.D32) 11.05.2006
5. Resolution passed by Board of Directors Ex.D42 22.06.2006
6. WILL in favour of plaintiff 21.09.2005
7. Registered Trust DeedEx.D9 21.09.2005
110. It is important to note, sound state of mind of the testator can be gathered from the very recitals of Ex.D30 WILL, on perusal of Ex.D30 WILL, in the preamble of the WILL itself, it is clearly mentioned that, 112 O.S.25413/2008 "I here by declare that, I am executing this WILL on my free will and out of my own volition"
111. It is further important to note, as I have already discussed above, from the direct evidence of DW3 who is attesting witness to the WILL and DW2, who is scribe of the said WILL, clearly disposed that, at the time of executing the WILL by Sri.K.Kuppaswamy Naidu, he was having sound state of mind and he was capable of understanding the nature of instrument and it's effect.
112. It is further significant to note, DW2 who is advocatescribe clearly deposed that, Sri.K.Kuppaswamy Naidu gave instructions to him to prepare WILL and he also gave draft/ his own manuscript and asked him to get it typed, accordingly he got typed the WILL EX.D30 and gave it Sri.K.Kuppaswamy Naidu and he also returned back 113 O.S.25413/2008 draft/manuscript to Sri.K.Kuppaswamy Naidu himself, thereafter Sri.K.Kuppaswamy Naidu after going through the said WILL, he affixed his signatures in presence of attesting witnesses and also in his presence as well as in presence of SubRegistrar. So, this evidence clearly shows that, Sri.K.Kuppaswamy Niadu was having sound and disposing state of mind.
113. Circumstances which are showing the sound state of mind of the Sri.K.Kuppaswamy Naidu, shortly before and soon after the execution of disputed WILL Ex.D30.
114. It is important to note, admittedly, Sri.K.Kuppaswamy Naidu had executed earlier registered WILL dated 21.09.2005 in favour of plaintiff Mr. Rajaiah, whereas present disputed WILL Ex.D30 came into existence on 27.09.2006, so it is 114 O.S.25413/2008 clear that, Sri.K.Kuppaswamy Naidu executed present WILL by revoking his earlier WILL dated 21.09.2005 as mentioned in the very WILL Ex.D30. So, it is clear that, said Sri.K.Kuppaswamy Naidu executed present WILL, within in a span of one year from his earlier WILL. It is important note, the original Plaintiff Mr. Rajaiah, in his plaint itself he has specifically averred that, Sri.K.Kuppaswamy Naidu before he becoming too ill, he had executed WILL dated 21.09.2005 in his favour, so, as per his own version, on the date of execution of said WILL dated 21.09.2005, the Sri.K.Kuppaswamy Naidu was in sound and disposing state of mind. It is important to note, at this juncture, it is worth to note the conduct of the plaintiff that, when it comes to WILL dated 21.09.2005 which is in his favour, he contends that, Sri.K.Kuppaswamy Naidu was in sound state of mind, but when it comes to WILL Ex.D30 which is in favour of defendants, he contends that, 115 O.S.25413/2008 Sri.K.Kuppaswamy Naidu was not in sound state of mind, so I am of the opinion, the plaintiff cannot blow hot and cold at a same time. Moreover, when plaintiff himself admits that, Sri.K.Kuppaswamy Naidu was in sound state of mind, at the time of executing WILL dated 21.09.2005 which is in his favour, then it must be deemed that, Sri.K.Kuppaswamy Niadu was in sound state of mind and same is continued until and unless contrary is proved that is to say when Sri.K.Kuppaswamy Naidu become unsound mind and why he was not having sound state of mind within a span of one year from his earlier WILL to present WILL, So in absence of such evidence and proper explanation from the plaintiff, contention of the plaintiff that, Sri.K.Kuppaswamy Naidu was not having sound state of mind while executing Ex.D30 WILL, cannot be accepted.
116 O.S.25413/2008
115. It is important to note, another circumstance, where plaintiff produced EX.P12 photo of Sri.K.Kuppaswamy Naidu to show that, the Sri.K.Kuppaswamy Naidu was very weak due to ill health in the year 2006, so he was not able to execute WILL etc,.
116. But it is important to note, on perusal of Ex.P12 which is colour photo of Sri.K.Kuppaswamy Naidu, clearly reveal that, Sri.K.Kuppaswamy Naidu was sitting in a sofa in well dressed and dignified look in his face, having 'Kumkum' and 'Vibhuthi' on his forehead, so if any one looks at the said photo, one can easily state that Sri.K.Kuppaswamy Naidu was very normal person, having sound state of mind.
117. It is further significant to note, on perusal of Ex.D49 to D53 which were taken on 14.05.2006 117 O.S.25413/2008 (as printed on very photos) ie., just four months prior to disputed WILL Ex.D30, wherein, it can be seen that, Sri.K.Kuppaswamy Naidu was sitting in sofa with well traditional dressed and participating in performance of Pooja. So, under such circumstances, contention of the plaintiff that, Sri.K.Kuppaswamy Naid was physically weak and not able to execute the WILL, cannot be believable and acceptable.
118. Sri.K.Kuppaswamy Naidu was managing the affairs of the company till his death.
119. It is important to note, one more circumstance to show that, Sri.K.Kuppaswamy Naidu was in sound state of mind ie., on perusal of Ex.D31 which is letter dated 15.04.2006, Ex.D32 letter dated 11.05.2006, which are just four and five months prior to present WILL written by Sri.K.Kuppaswamy Naidu as a Managing Director addressing to the Karnataka State 118 O.S.25413/2008 Financial Corporation (KSFC) Bengaluru, clearly reveal that, he was Managing the his company affairs as a Managing Director.
120. It is further significant to note, on perusal of EX.D35 which is ''Annual General Body Meeting'' notice of M/s. Chamundeshwari Studios and on perusal of Ex.D36 directors report, in the General Body Meeting held on 30.08.2006 which is just 27 days prior to present WILL and Ex.D42 which is letter dated 22.06.2006 annexed with Resolution passed by Board of Directors, clearly show that, Sri.K.Kuppaswamy Naidu as a Chairman/Managing Director participated in the Annual Body Meeting and affixed his signature to said documents and communicated the same to concerned authorities. So, this evidence clearly shows that, the Sri.K.Kuppaswamy Naidu was having sound 119 O.S.25413/2008 state of mind and managing the affairs of the company just 27 days prior to execution of present WILL EX.D30.
121. It is further significant to note, on perusal of EX.D10 which is cheque dated 28.02.2007 issued by Sri.K.Kuppaswamy Naidu clearly shows that, just 4 days prior to his death (died on 04.03.2007) he issued said cheque by affixing his signature as Managing Director of M/s. Chamundeshwari Studio and Laboratory.
122. At this juncture, it is worth to note, PW1 in his crossexamination, he clearly admitted that, as per Ex.D8 which is his appointment letter, wherein Sri.K.Kuppaswamy Naidu being Managing Director of Sri. Chamundeshwari Studio and Lab, appointed PW1 as a Software Engineer Consultant and Management Consultant for Sri. Chamundeshwari Studio and Lab 120 O.S.25413/2008 and he further admitted that, said Ex.D8 bears his and Sri.Kuppaswamy Naidu signatures and he further admitted that, "it is true to suggest all payments and salaries by the above said company were being made to me by way of cheques. It is true to suggest that the managing director of the said company was signing the said cheques. Witness volunteers Sri.K.Kuppaswamy Naidu was the managing director who was signing the cheques".
123. So, from above evidence and circumstances, it is clear that, before and after execution of disputed WILL Ex.D30 by Sri.K.Kuppaswamy Naidu, he was managing the affairs of the company, so these circumstances clearly prove that, at the relevant point of time that is to say at the time of execution of Ex.D30 WILL Sri.K.Kuppaswamy Naidu was having sound state of 121 O.S.25413/2008 mind. So, under such circumstances, mere non examination of treating doctor Mr. Prabhakaran, is not fetal to prove the sound state of mind of the testator. Hence, contention of the plaintiff that, Sri.K.Kuppaswamy Naidu was not having not sound state of mind, at the time of execution of the WILL cannot be accepted.
124. Intention of the testator that, his desire should be carried into effect after his death.
125. It is important to note, on perusal of Ex.D30 WILL, testator Sri.K.Kuppaswamy Naidu expressed his clear intention as to how his body is to be treated after his death that is to say he desires that, his body should be kept for paying homage by mourners for a minimum period of 5 hours and crimination should not be delayed beyond reasonable time and his body should be displayed attired in his 122 O.S.25413/2008 best out fit as he used to during his life time and he further wished to cremanate his body in electric crematorium. It is further significant to note, he has specifically demarcated/ kept Rs.1,00,000/ in the bank deposit in the name of his care taker D4 Smt. Rajalakshmi to meet his funeral expenses and to perform his last rites under the supervision of any of two executors mentioned in the said WILL and any money left unspent out of above said Rs.1,00,000/, the remaining unspent amount shall go to "KK Foundation and Charitable Trust". His further desire is that, after his demise, advertisement regarding his death should be published in Daily News Papers ie., "The Hindu", "Deccanherald" and Tamil Daily News Paper namely., "Daily Tanti".
126. He further desires as to how his liabilities are to be met.
123 O.S.25413/2008
127. He further desires as to how his executors shall execute and carry out his directions and ambitions narrated in the said WILL .
128. He further desires as to how the amount of Rs.50,00,000/ deposited in the name of goddess Rajarajashwari Devasthanam Trust is to be utilized.
129. So, on considering the above recitals of the WILL. They clearly establishes that, testator Sri.K.Kuppaswamy Naidu has desired to carry out above said stated acts, to be carried out into effect after his death.
Suspicious circumstance surrounded in execution of WILL and dispelling of the same: I. Alleged disinheritance of legal heirs and alleged unfair distribution of properties. 124 O.S.25413/2008
130. Learned counsel for plaintiff argued that, original plaintiff Mr.Rajaiah, after retirement from his service in Aeronautical Development Establishment, Bengaluru, he and his family members started to reside with his brother Sri.K.Kuppaswamy Naidu, who was old aged and sick, so plaintiff was taking care of his brother Sri.K.Kuppaswamy Naidu and they were sentimentally well attached each other, so with that love and affection, Sri.K.Kuppaswamy Naidu had executed WILL dated 21.09.2005 in favour of plaintiff. Such being so, the defendants No.4 to 9, who are strangers to plaintiff's family, in the guise of care takers of Sri.K.Kuppaswamy Naidu, they entered into family of Sri.K.Kuppaswamy Naidu and concocted present WILL Ex.D30 by destroying WILL dated 21.09.2005 which was in favour palintiff, only with an intention to grab entire estate of Sri.K.Kuppaswamy Naidu or atleast major portion of his properties by nominally 125 O.S.25413/2008 showing some of the properties in the name of plaintiff and his son Mr. Vijay Krishna in concocted WILL Ex.D30 to make it appear as if said WILL is genuine, so the alleged distribution of property shown in the name of plaintiff and his son is unfair and unnatural, so actually it amounts to disinheritance of original plaintiff and his family members, so disinheritance creates one of the strongest suspicious circumstance in executing the disputed WILL Ex.D30 etc,.
131. Having regard to the arguments of learned counsel for plaintiff, it is no doubt true that disinheritance of legal heirs more particularly parents, wife and children of the deceased is one of the strongest suspicious circumstance, but it is worth to note, herein this case admittedly deceased Sri.K.Kuppaswamy Naidu was bachelor and he died as such and he has not left any classI legal heirs, however he left only classII heir ie., original plaintiff 126 O.S.25413/2008 Mr. Rajaiah, who is his brother. It is well settled law that, normally WILL is made to deviate the natural succession that is to say to disinherit the legal heirs. So, under such circumstances, it is necessary for the court to find out the reason for such disinheritance if any and some times, the reason for such disinheritance could be found in the WILL itself, as observed by Hon'ble High Court in above referred J.T. Surappa Case.
132. Herein this case, on perusal of Ex.D30 WILL, it is clearly mentioned at paras No.13(1b to d) and 15(2) that, 13(b) Out of my natural love and affection, I Bequeath a sum of Rs.1 Crore to my younger brother Sri.K.Rajaiah, I have already nominated two of my Capital Gains Tax Exemption Bonds of REC of Rs.50 Lakhs each bearing Distinctive Nos.000336620 to 000337119 in Bond No.00022295 and Distinctive Nos.000337620 to 000338119 in 127 O.S.25413/2008 Bond No.0002297 in the name of Sri.K.Rajaiah.
(c) Out of natural love and affection, I bequeath a sum of Rs.50 lakhs to Sri.R.Vijaykrishna, S/o Sri.K.Rajaiah. I have already nominated one of my Capital Gains Tax Exemption Bonds of REC bearing Distinctive Nos.000339620 to 000340119 in Bond Nos.2301 in the name of Sri.R.Vijaykrishna.
(d) Out of natural love and affection, I bequeath a sum of Rs.5 lakhs to
Chi.Shravan Krishna, S/o Sri. Vijaykrishna. I have already nominated one of my Capital Gains Tax Exemption Bonds of REC bearing Distinctive Nos.000342520 to 000342569 in Bond No.0002311 in the name of Chi.Shravan Krishna.
15(2) I hearby bequeath my car - TATA Indigo bearing Registration No.KA 04MB 469 to Sri.Vijay Krishna.
128 O.S.25413/2008
133. So, from the above recitals of the Will itself, it is clear that Sri.K.Kuppaswamy Naidu bequeathed substantial amount of Rs.1 Crore in the name of his brother original plaintiff Rajahia and Rs.50 Lakhs and one car in the name of plaintiff's son Mr.Vijaya Krishna that is PW.1 and Rs.5 lakhs in the name of Chi.Sharavan Krishna who is son of PW.1.
134. At this juncture, it is further important to note PW.1 in his crossexamination at page No.50, he clearly admits that "It is true to suggest that executors have handed over REC Bonds of Rs.1.55 crores to us. We have received it under protest".
135. So from the above recitals of Ex.D30 Will and clear admission of PW.1, it is crystal clear that K.Kuppaswamy Naidu bequeathed a substantial amount of 1.55 crores and one car in the name of 129 O.S.25413/2008 original plaintiff and his family members, so, they are also the beneficiaries under the WILL. So under such circumstance, question of disinheritance does not arise, hence, I am of the opinion that Sri.K.Kuppaswamy Naidu did not disinherit the legal heirs in the said Will Ex.D30. Hence, the contention of the plaintiff that execution of present Ex.D30 Will is surrounded by suspicious circumstances of disinheritance, cannot be accepted. Hence, I don't find any force in the arguments of learned counsel for plaintiff.
136. Coming to alleged unfair distribution of properties in the alleged Ex.D30 Will.
137. Learned counsel for plaintiff argued that the amount and property shown in the names of plaintiff and his family members are only an eye wash to project the said WILL as genuine, infact major portion of properties are taken by D4 to D6 who are strangers to 130 O.S.25413/2008 plaintiff's family, so, no evidentiary value can be attached to the contents of the said WILL etc,.
138. He further argued that, court can imagine, the pain and agony suffered by original plaintiff K.Rajaiah, who is deprived from enjoying the estate of his own brother Sri.K.Kuppaswamy Naidu, due to concocted WILL Ex.D30. He further argued that, defendant No.4 Smt. Rajalakshmi, who joined as a care taker for monthly salary of Rs.3,000 as shown in Ex.P6 care taker agreement but, after demise of Sri.K.Kuppaswamy Naidu, the caretaker Smt. Rajalakshmi became Managing Director of Sri. Chamundeshwari Studios and Laboratory Private Limited by virtue of shares and properties allotted to her in the concocted Will Ex.D30 and they are enjoying the entire property by depriving the legal right of the plaintiff, who is actually entitled for entire estate of his deceased brother Sri.K.Kuppaswamy Naidu etc,. 131 O.S.25413/2008
139. Having regarding to the arguments of learned counsel for plaintiff, it is no doubt true that normally it pains the person when he is deprived from getting huge and valuable properties by way of succession and same is obstructed by Will, but Court cannot adjudicate the matter based on sentiments, emotions or sympathy. On the other hand Court has to decide the case on well established legal principles, so, at this juncture, it is worth to note principle laid down by Hon'ble Apex Court in the judgment reported in AIR 1976 SC 794=1976 SCR (2) 924 (Navneeth Lal @ Rangi V/s. Gokul & others, wherein it is held: Testamentary WILL Construction Principles The following are the established principles for construing the language of the Will.
(a) In construing a document whether in English or in vernacular the 132 O.S.25413/2008 fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.
(b) In construing the language of the Will the court is entitled to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular senseall as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.
(c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(d) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, 133 O.S.25413/2008 such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.
(e) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will.
140. At this juncture it is also worth to quote Sec. 74 & 82 of Indian Succession Act, which reads as follows: Sec. 74 Wording of will.--It is not necessary that any technical words or terms of art be used in a Will, but only that the 134 O.S.25413/2008 wording be such that the intentions of the testator can be known therefrom.
Sec. 82. Meaning or clause to be collected from entire Will.--The meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.
141. So, from the above ratio descidendi and on combined reading of Sec. 74 & 82 of Indian Succession Act, it is clear that, while construing the recitals of the WILL, court has to rely upon very recitals of the WILL on its entirety and court has to apply "Arm Chair Rule". By putting itself in the testator's arm chair.
142. So, in the light of above ratio, if the recitals of Ex.D30 WILL are taken into consideration on it's entirety and applying "Arm Chair Rule", I am of the opinion, the reasons and intention for execution of 135 O.S.25413/2008 EX.D30 WILL and distribution of properties there under by the testator Sri.K.Kuppaswamy Niadu, appears to be as follows: I. To express his gratitude towards defendants No.4 to 6, who are closely related care takers of Sri.K.Kuppaswamy Naidu.
II. Plaintiff and his family were residing separately in their own house and they deserted the Sri.K.Kuppaswamy Niadu when he needed care utmost.
III. Sri.K.Kuppaswamy Niadu's
dissatisfaction towards behavior of Mr.
Vijayakrishna (PW1).
IV. To achieve aim and objects of KK public charitable trust created by Sri.K.Kuppaswamy Niadu.
V. To continue his ambition of performing pooja and temple rituals of Goddess Sri.Rajarajeshwari temple 136 O.S.25413/2008 Rajarajeshwarinagar, hitherto he was doing.
VI. To settle his personal and company liabilities ie., to safe guard the interest of his company Sri. Chamundeshwari Studio and Lab Private Limited.
VII. To distribute properties as per his will and wish.
VIII. Finally his intention to give effect to his WILL, after his death.
The above points are discussed one by one as fallows:
143. It is important to note, though the plaintiff contended that, defendants No.4 to 9 are strangers to plaintiff's family but it is significant to note that, the PW1 in his crossexamination (at page No.18), he clearly admitted the facts as to how the defendants No.4 to 9 are closely related to Sri.K.Kuppaswamy 137 O.S.25413/2008 Naidu that is to say, he has admitted that, Sri.K. Kuppaswamy Naidu was the son of sister of Late. Mr. Sriramalu Naidu, that is to say Mr. Late. Sriramalu Naidu was maternal uncle of Sri.K.Kuppaswamy Naidu and said Mr. Sriramalu Naidu was running M/s. Pakshi Raj Studios at Coimbatore and Smt. Seethammal was leaving with said Late.Mr. Sriramalu Naidu as his junior wife and said Late.Smt. Seethammal had a sister namely Smt. Padma Rajamani ie., defendant No.8 and defendant No.9 Sri. Rajamani Jaganathan is her husband. Defendant No.5 Sri. Sadagopan Rajamani is their son and Defendant No.4 Smt.Rajalakshmi Sadagopan is wife and defendant No.6 Smt. R.S. Gayithri Tamizharasan is their daughter. Defendant No.7 is husband of defendant No.6.
138 O.S.25413/2008
144. The evidence further reveal that, in the year 1969 as Sri.Sriramalu Naidu suffered loss in his studio business at Coimbatore, so he sold assets and liabilities of said M/s. Pakshi Raj Studio to M/s. Chamundeshwari Studio, so Sriramalu Naidu and his wife Smt. Seethammal and these defendants No.4 to 9 came to Bengaluru and started to live with Sri.K.Kuppaswamy Naidu and these defendants No.4 to 9 have been taking care of Sri.K.Kuppaswamy Naidu and this fact is deposed by very Sri.K.Kuppaswamy Naidu in HRC10166/82 proceedings as shown in Ex.D7 which is certified copy of his deposition.
145. At this juncture, it is also worth to note that, when photos are confronted to PW1 in his cross examination, he clearly admitted as fallows: "In the photos now shown to me I can identify Sriramalu Niadu but I cannot identify Seethammal because the picture 139 O.S.25413/2008 is not clear. The photos are marked as Ex.D3 and 4. In the next photo now shown to me I can identify my mother and father. The said photo is marked as Ex.D5. I can also identify that Seetammal is sitting on a chair in the said photo. In the said photo Seetammal is carrying me when I was child. It is true to suggest that defendant No.8 is also in the said photo. In the next photo shown to me now, I identify Sri.K.Kuppaswamy Naidu, and also D8, 9 and 4 the said photo is marked as Ex.D6. The photo has been taken as No.3 cunning ham crescent road Bengaluru".
So, from the above evidence, it is clear that, defendants No.4 to 9 are not utter strangers to plaintiff's family as contended by plaintiff but infact they lived with Sri.K.Kuppaswamy Niadu as relatives from the side of his uncle Sriramalu Naidu and Aunt Smt. Seetammal.
140 O.S.25413/2008
146. It is further significant to note, as admitted by PW1 himself, as shown in Ex.D5 photo, Smt. Seetammal was carrying very PW1 on her Lap, when he was small child (it appears from the photo that, he was aged about 2 years) and in the said photo we can also see the original plaintiff Mr. Rajaiah and his wife Smt. Swarnalatha Rajaiah (P1a) and D8 Smt. Padma. It is further significant to note, in Ex.D6 photo we can also see the Sri. K.Kuppaswamy Niadu along with defendant No.4 Smt. Rajalakshmi and defendant No.6 Smt. R.S.Gayithree and defendant No.8 Smt. Padma and defendant No.9 Rajamani.
147. So, from the above photos, it is crystal clear that, defendants No.4 to 9 are closely related with Sri.K.Kuppaswamy Naidu and plaintiff's family from very long back that is to say even from the childhood of PW1.
141 O.S.25413/2008
148. At this juncture, it is worth to note, the recitals of Ex.D30 WILL, wherein Sri.K.Kuppaswamy Naidu stated as follows: "During my life time initially upto the year 1983, I was looked after by my Aunt Smt.K. Seethammal and after her death, Smt. R.Padma, my aunt's sister and her husband Sri. J. Rajamani, looked after me upto the year 2001. Since, my aunt's sister was shifting to Trichy, she requested my brother Sri.Rajaiah to look after me. Accordingly Mr.K.Rajaiah and his family members came to stay with me and had offered to look after me and lived in my premises. Sri.K.Rajaiah and his family members after staying with me for a period of one year had opted to move away from my house. This was the time when I most needed personal attention due to my old age. Thereafter, Sri.R.Sadagopan son of my Aunt's sister Smt.R.Padma and his family have offered to step in the place of Sri.K.Rajaiah and his family and have been looking after me till date".
142 O.S.25413/2008So, from the above recitals of WILL and clear admission of PW1 and admitted photos of Ex.D3 to 6, it is crystal clear that, defendants No.4 to 6 were closely related with Sri.K.Kuppaswamy Naidu from very long back and they have taken care of said Sri.K.Kuppaswamy Naidu till his last breath. So, under such circumstances, I am of the opinion, it is quite natural to bequeath some of the properties to D4, D5 & D6 out of love and affection and to show his gratitude to defendants No.4 to 9, who were living with him and assisted him in his personal and professional life for a long time.
On the other hand, the following admissions of PW1 clearly shows that, plaintiff and his family were almost away from the company of Sri.K.Kuppaswamy Naidu.
143 O.S.25413/2008
149. At this juncture, it is also worth to note, PW1 in his crossexamination, he clearly admitted that, "My father joined in Indian institute of science in 1963 as a Lecturer in Bangalore. He joined as a professor at IIT Bombay in 1974. He worked there till 1978. Between 1978 and 1979 he worked at Oakland university in USA and came back to IIT Bombay in 1979 and continued to be there till 1984. In 1984 we shifted to Bangalore and my father joined Aeronautical Development establishment at Indira Nagr, Bengaluru5 and worked there till his retirement in October 1999. It is true to suggest that after his retirement he built a own house at Rajarajeshwari Nagar in Bengaluru. It is false to suggest that until death of Sri.K.Kuppaswamy Niadu, my father's entire family was residing at my father's own house at Rajarajeshwari Nagara. If it is suggested that in 1992 when defendant No.4 to 6, 8 and 9 went to their native place in Tamilu nadu in view of their personal reasons, for 8 to 9 months. 144 O.S.25413/2008 Plaintiff and his wife came to house of Sri.K.Kuppaswamy Naidu to look after his welfare. I do not recollect".
So, from the above evidence, it is obvious that, plaintiff and his family, most of the times were away from Sri.K.Kuppaswamy Naidu as plaintiff Mr. Rajaiah was working in IIT, Bombay and also working in USA and after his retirement in 1999, he built his own house at Rajarajeshwarinagar, Bengaluru and living in the said house.
150. At this context, it is also worth to note, on perusal of Ex.D30 WILL, "testator Sri.K.Kuppaswamy Naidu has clearly expressed his displeasure on PW1 by following words that, "I take this opportunity and use this instrument to express my total dissatisfaction over the inappropriate behavior of Sri.Vijaykrishna S/o Sri.K.Rajaiah, my younger brother 145 O.S.25413/2008 Sri.K.Rajaiah that I am pained and perturbed by the acts of Sri.Vijay Krishna and this probably has become the serious cause for most of the contents of this Will".
151. At this juncture, it is also worth to note, Ex.D25 which is a letter written by PW1 to Sri.K.Kuppaswamy Naidu (which is admitted by PW1 in his crossexamination, when same is confronted to him), wherein PW1 promised to Sri.K.Kuppaswamy Naidu that he had realized that, he did not come up to the expectation of his uncle Sri.K.Kuppaswamy Naidu and he promised him that he would raise up to or beyond the expectation of Sri.K.Kuppaswamy Naidu, so the contents of said letter shows that, Sri.K.Kuppaswamy Naidu was not happy with the performance of PW1, so PW1 promised him that he would raise up to the expectation of Sri.K.Kuppaswamy Naidu.
146 O.S.25413/2008
152. The above stated circumstances clearly explained the reasons as to why Sri.K.Kuppaswamy Naidu has not allotted entire or major properties to the plaintiff and his family, though he has given them a substantial amount of 1.55 crores. It is further significant to note that, unequal allotment of properties to plaintiff and his family members, is not a ground to disbelieve the WILL Ex.D30.
Properties bequeathed in the name of "KK Foundation and Charitable Trust" under Ex.D30 WILL.
153. It is further significant to note that, as I have already pointed out Sri.K.Kuppaswamy Naidu had created public charitable trust in the name and style of "KK Foundation and Charitable Trust" in the year 2005 as per registered trust deed dated 147 O.S.25413/2008 21.09.2005 as per Ex.D9. On perusal of said trust deed it reveals that, Sri.K.Kuppaswamy Naidu was inspired by the nobel and charitable thoughts of his aunt Late. Smt. K.Seethammal to serve the woman and children and poor public. So in order to continue his ambitions even after his death, he created said trust.
154. It is further significant to note, in the light of above trust deed, if the present WILL is analyzed, it is obvious that, testator Sri.K.Kuppaswamy Naidu has bequeathed building property shown in sketch 'E' in plan 'A' annexed to the WILL and also bequeathed car bearing registration No. CAE 7567 and some of the cash and bank balance which are remained after settling the liabilities and after meeting the expenses stated in the above said WILL are also bequeathed in the name of said trust. So it is clear that, substantial 148 O.S.25413/2008 amount and property have been given to "KK Foundation and Charitable Trust".
Properties bequeathed in the name of M/s. Sri.Chamundeshwari Studios and Lab Private Limited.
155. It is further significant to note, on perusal of Ex.D30 WILL, Sri.K.Kuppaswamy Naidu has also bequeathed land together with building which is shown in sketch 'D' in plan 'A' annexed to the WILL in the name of M/s. Chamundeshwari Studio and Laboratories. Further he expressed that he had already earmarked REC bonds of Rs. 2 crores to give it to Chamundeshwari Studio and Laboratories as unsecured advance/loan and said amount has to be kept as Corpus fund of the said company. So, from this evidence it shows Sri.K.Kuppaswamy Naidu intend to continue to safeguard the interest of his 149 O.S.25413/2008 company ie., Chamundeshwari Studio and Lab Private Limited, even after his death.
Properties bequeathed in the name of Sri. Rajarajeshwari Devasthanam Trust.
156. It is further significant to note, in EX.D30 WILL, he also bequeathed Rs. 50,00,000/(50 Lacks) to Sri. Rajarajeshwari Devasthnam Trust, Bengaluru to continue his ambition of performing Pooja, temple rituals of Srirajarajeshwari Temple, hithereto he was doing.
Properties bequeathed in the name of D4, D5 & D6.
157. It is significant to note, on perusal of Ex.D30 Sri.K.Kuppaswamy Naidu bequeathed Rs.5,00,000/in the name of D4 Smt. Rajalakshmi, he also bequeathed his equity shares of M/s. 150 O.S.25413/2008 Chamundeshwari Studio and Laboratory, value of Rs.8,40,000/ and Rs.8,10,900/ and immovable property ie., land together with building shown in sketch 'B' in plan 'A' annexed to the WILL.
158. Whereas, his shares of M/s.
Chamundeshwari Studio and Laboratory, value of Rs.2,70,000/ is bequeathed in the name of D5 R.Sadagopan and his wife Smt. Rajalakshmi. Further the shares value of Rs.1,55,900/ also bequeathed in the name of D5 R. Sadagopan.
159. Whereas, Rs. 1 crore has been bequeathed in the name of D6 R.S.Gayithree and shares of M/s. Chamundeshwari Studio and Laboratory, value of Rs.3,30,000/ and other shares value Rs.5,92,900/ and immovable property ie., first floor portion property bearing No.48 shown in sketch 'C' in Plan 'A' annexed to the WILL, in the name of D6.
151 O.S.25413/2008
160. At this juncture, it is important to note, DW1 deposed that, in the year 2004 Sri.K.Kuppaswamy Naidu had sold his property to M/s. Mysore International Hotels Private Limited as per Ex.D23 & Ex.D24 registered sale deeds and had received more than Rs. 10 crores as sale consideration and same amount was invested/deposited in capital gain tax exempted bonds in Rural Electrification Corporation Limited (REC Bonds).
161. It is further significant to note on perusals of recitals of Will, it is obvious that even much prior to execution of present WILL, Sri.K.Kuppswamy had already made nominations of said bonds in the names of plaintiff and his family members and also in the names of defendants No.4 to 6 as nominees, so if really testator Sri.K.Kuppaswamy Naidu had no intention to execute the WILL, then definitely, he would not have 152 O.S.25413/2008 nominated the names of plaintiff and defendants No.4 to 6 in their respective REC deposit bonds. So this nominations made in their names clearly show the intention of the testator to bequeath above mentioned bond amounts in their names and to execute WILL Ex.D30.
162. So, on considering above stated, disposition of property by Sri.K.Kuppaswamy Naidu and reasons assigned by him for such distribution of properties, I am of the clear opinion that, the said disposition are not unfair and unnatural. Hence, arguments of learned counsel for plaintiff that, the distribution is unfair and unnatural and it creates suspicious circumstance in executing the WILL, cannot be accepted.
153 O.S.25413/2008
Other alleged suspicious circumstance
163. Learned counsel for plaintiff further argued that, Ex.D30 WILL contains totally 21 pages and neatly typed with minute details of every properties, including details of Rural Electrification Corporation Limited Bonds (REC Bonds) and also details of shares, bank deposits and vehicle numbers, etc,. So, court can imagine that it is highly impossible to keep memory of above stated minute details of the properties by a person like., Sri.K.Kuppaswamy Naidu, who was aged about 82 years suffering from illhealth. So, this creates doubt regarding genuineness in execution of WILL. He further argued, defendants contended that, the Si.K.Kuppaswamy Naidu written the WILL but infact Ex.D30 is neatly typed document, so there is lot of difference between words written and typed moreover in the disputed WILL father name of the Sri.K.Kuppaswamy Naidu is shown as N. 154 O.S.25413/2008 Kodandarama Naidu but in all other documents executed by Sri.K.Kuppaswamy Naidu show that, his father name is shown as N. Kothandarama Naidu so these facts create doubt regarding genuineness of the said WILL etc,.
164. Having regarding to the arguments of learned counsel for plaintiff, it is significant to note, as I have already pointed out, in order to prepare Ex.D30 WILL, Sri.K.Kuppaswamy Naidu took the legal assistance of DW2 Sri. Venkataramani, who is an practicing advocate, moreover DW2 specifically deposed that, Sri.K.Kuppaswamy Naidu had given his manuscript/draft with respect to details of properties and other particulars to prepare the WILL, so as per instructions of Sri.K.Kuppaswamy Naidu and draft given by him, he (DW2) has prepared Ex.D30 WILL. Moreover, as I have already stated that, 155 O.S.25413/2008 Sri.K.Kuppaswamy Naidu was Founder and Managing Director of reputed Company ie., M/s. Chamundeshwari Studio and Lab Private Limited, having worldly knowledge and managing the affairs of his company till his death. So, I am of the opinion, when testator Sri.K.Kuppaswamy Niadu took the assistance of legal expert for preparation of said WILL by providing him the minute details then naturally WILL contains all minute details, hence, I am of the opinion that, there is no reason to doubt the genuinenity in preparing the said WILL.
165. Coming to discrepancy in the spelling of father name of Sri.K.Kuppaswamy Niadu that is to say Kodandarama Naidu and Kothandarama Naidu, it is significant to note, it is well known fact that, pronunciation of words/alphabets quite different from language to language, for example in Kannada language name of 'Mahesh' is pronounced in Tamil 156 O.S.25413/2008 language as 'Magesh'. So, under such circumstances, mere such discrepancy in spelling, will not create doubt regarding the genuinenity of WILL. Hence, I don't find any force in the arguments of learned counsel for plaintiff.
166. Coming to one more argument of learned counsel for plaintiff that, nonexamination of defendant No.4 Smt. Rajalakshmi, who is one of the major beneficiaries under the WILL, creates doubt regarding genuineness of the WILL Ex.D30 etc,.
167. Having regarding to the arguments of learned counsel for plaintiff that, as I have already pointed out defendant No.5 Mr. Sadagopan, who is husband of D4 has been examined as DW1 on his behalf and on behalf of his wife D4, so in view of Sec. 120 of Indian Evidence Act, he is competent witness to depose on behalf of his wife, moreover he is also one of 157 O.S.25413/2008 the beneficiary under disputed WILL and he is also having knowledge regarding present facts and situation, further more, there is no evidence that, defendant No.5 has played active role/active part in execution of disputed WILL. So, in absence of such active role of D4 in execution of disputed WILL, I am of the opinion nonexamination of D4 is not fetal and it does not create any suspicious circumstance in a execution of WILL and it's genuinenity. Hence I don't find any force in the arguments of learned counsel for plaintiff.
168. Coming to yet another arguments of learned counsel for plaintiff that, Ex.D30 WILL is not produced along with written statement and not marked through attesting witness by examining him first, whereas, WILL Ex.D30 is produced and marked through D5, who is beneficiary, so the procedure adopted in marking and proving of said WILL is bad in 158 O.S.25413/2008 law, hence no evidenatiary value can be attached on the said WILL etc,. In support of his arguments, he placed reliance upon the judgment of Hon'ble High Court of Karnataka reported in ILR 2006 Karnataka 4213 (V.M.Nilakantaiah and another V/s. State of Karnataka).
169. Having regarding to the arguments of learned counsel for plaintiff, it is significant to note, in the above referred judgment Hon'ble High Court, it is observed that, in order to prove the WILL, the attesting witness has to be examined first and get the WILL marked through him, then if necessary, the propounder can be lead his further evidence with the permission of court. But herein this case, as I have already pointed out DW2, K. Venkataramani deposed in his examinationinchief itself, that after registration of WILL, as District Registrar declined to keep the same 159 O.S.25413/2008 in his safe custody, the Sri.K.Kuppaswamy Naidu handed over the original WILL along with bonds and documents to executors in his presence. It is further significant to note, DW1 deposed that, after demise of Sri.K.Kuppaswamy Naidu, the executors sent the copies of the said WILL to the beneficiaries, then only DW1 came to know about the said WILL made by Sri.K.Kuppaswamy Naidu. It is further significant to note, on perusal of Ex.D15 which is final closure report U/sec. 173 of Cr.P.C filed by CBI., Bengaluru to concerned court and on perusal of very WILL Ex.D30, they clearly reveal that, after death of Sri.K.Kuppaswamy Naidu, by virtue of police complaint lodged by plaintiff regarding death Sri.K.Kuppaswamy Naidu, CBI/Police had taken the custody of present WILL and other documents executed by Sri.K.Kuppaswamy Naidu for sending them to FSL for obtaining handwriting expart opinion, so after 160 O.S.25413/2008 completion of said investigation, it appears that, defendant No.5 received the original WILL and produced and got it marked as EX.D30, moreover attesting witness DW3 has clearly identified the said WILL and signatures of Sri.K.Kuppaswamy Naidu found on the said WILL as discussed above. So, under these peculiar facts and circumstances, I am of the humble opinion that, principle laid down in the above stated judgment will not applicable to present facts and situations. So, there is no reason to doubt regarding genuinenity of the WILL. Hence I don't find any force in the arguments of learned counsel for plaintiff.
170. Coming to another arguments of learned counsel for plaintiff that, defendants No.1 to 3 , who claim to be executors under disputed WILL Ex.D30, though, they filed their written statement but they have not stepped into witness box to prove their contention, 161 O.S.25413/2008 so their written statement has no value in the eye of law, moreover without obtaining probate or letter of administration, they cannot administrate the estate of deceased Sri.K.Kuppaswamy Naidu etc,.
171. Having regarding to the arguments of learned counsel for plaintiff, it is worth to note, ratio laid down by Hon'ble Apex Court in the judgment reported in AIR 2019 SC 5556 (Kanta Yadav V/s. Home Prakash Yadav & Others). (This judgment is relied by learned counsel for defendants No.1 to 3). Wherein, The Hon'ble Court raised question and answer as follows:
"The only point on which matter was referred to full bench was a WILL could be set up in defence in a suit without probate?
it is held that, 162 O.S.25413/2008 "A combined reading of sections 213 & 57 of the Indian Succession Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling U/Sec. 57(a) & (b), Sub Sec. (2) of Section 213 of the Act applies and SubSection (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories".
"Therefore, there is no problem in arriving at the conclusion that if the WILL is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jain, no probate is required".
So, in the light of above ratio, if the present facts and situations are analyzed, herein this case, admittedly properties are situated in Karnataka State at Bengaluru and parties are also of Karnataka State and deceased Sri.K.Kuppaswamy Naidu is Hindu. So, under such circumstances, I am of the opinion that, 163 O.S.25413/2008 defendants can set up defence based on Ex.D30 WILL without probate. It is fuhrer significant to note, on considering the defence taken by all contesting defendants No. 1 to 9, 11, 16 & 17, they are not having any conflict interest against one another, on the other hand they are sailing in a same boat, so when defendant No.5 is examined, I am of the opinion, non examination of D1 to D3 will not fetal to contention raised by them. Hence, I don't find any force in the arguments of learned counsel for plaintiff.
172. Coming to the judgments of Hon'ble Apex Court and High Court relied by learned counsel for plaintiff.
173. It is pertinent to note, the judgments of Hon'ble Apex Court reported in (2013) 7 SCC 490 and (2003) 2 SCC 91 & AIR 2022 SC 167, AIR 1977 SC 63, ILR 2021 KAR 1559 which deals with proof of WILL, in 164 O.S.25413/2008 accordance with Sec. 68 & 71of Indian Evidence Act r/w Sec. 63 of Indian Succession Act. However, I have already referred larger bench judgments of Hon'ble Apex Court reported in AIR 1959 SC 443 H. Venkatachala Iyanger V/s. B.N. Thimmajamma and 2020 SCC online SC 385 (Shivakumar & Others V/s. Sharana Basappa & Others) also dealt with proof of WILL. So, in view of binding precedent of larger bench judgment of Hon'ble Apex Court referred supra and with due respect to judgments of Hon'ble Apex Court and Hon'ble High Court relied by learned counsel for plaintiff, I am of the humble opinion that, they will not helpful to the contention of learned counsel for plaintiff.
174. Conclusion: in view of discussion made above, I am of the clear opinion that propounders of the Will Ex.D30 have satisfactorily proved the same, in 165 O.S.25413/2008 accordance with Sec. 63 of Indian Succession Act and 68 of Indian Evidence Act by removing all legitimate suspicious circumstances surrounded in execution of said WILL to the Judicial conscience of this Court, hence, the said Will is legally valid and enforceable. Hence, I hold additional issue No.1 in the Affirmative.
175. Issues No.1 to 3: In view of discussion made on Addl Issue No.1, the legal representatives of plaintiff are not entitled for administration of suit properties and also seeking for accounts from defendants No.1 to 9 from 04.03.2007 and they are also not entitled for permanent and mandatory injunction as sought for. Hence, I hold these Issues No.1 to 3 in Negative.
166 O.S.25413/2008
176. Issue No.4 : For the foregoing reasons assigned on Issues No.1 to 3 and Addl Issue No.1, I proceed to pass following: :: ORDER ::
Suit of the plaintiff is hereby dismissed.
On considering the facts and circumstances, parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the stenographer directly on the computer, corrected by me and then pronounced in the open Court today the 27th day of February, 2023.) (Sri. V.NAGARAJA) IV Addl. City Civil and Sessions Judge, Bengaluru 167 O.S.25413/2008 ANNEXURE Witnesses examined for the plaintiff:
PW.1 : Sri. R. Vijay Krishna, Documents exhibited for the plaintiff:
Ex.P1: Deccan Herald News Paper
Ex.P2 : Legal Notice dated 21.10.2013
Ex.P3 : Reply given by JP Associates law firm
dtd.29.11.2013
Ex.P4: Office copy of reply dtd.05.12.2013
Ex.P5: Postal acknowledgment
Ex.P6: Certified copy of agreement dtd.24.12.2002
Ex.P7: True copy of affidavit dtd.15.11.2006
Ex.P8: Certified copy of resolution of the meeting
dtd.30.08.2006
Ex.P9: Certified copies of application in
O.A.No.336/2000
Ex.P10: Certified copy of FIR in Crime No.13/2006
Ex.P11: Certified copy of FIR in Crime No.137/2006
Ex.P12: One color Photo of Sri.K.Kuppaswamy
Naidu
Ex.P13: Certified copy of deposition of Smt.
168 O.S.25413/2008
Rajalakshmi in C.C. 21065/2008
Ex.P14: Certified copy of Account opening form of
R.S. Gayithree
Ex.P15: Certified copy of order of NCL Tribunal
dtd.27.08.2018
Ex.P16 to 18: 3 color photos
Ex.P19: CD of Ex.P16 to 18 photos
Ex.P20: Certified copy of bank statement of
accounts
Ex.P21: Certified copy of account opening form of
defendant No.4
Ex.P22: Certified copy of bank statement of
accounts for the period from 01.01.2005 to 24.04.2008 of defendant No.4 Ex.P23: Certified copy of bank statement of accounts for the period from 24.04.2008 to 04.10.2008 of defendant No.4 Ex.P24: Certified copy of bank statement of accounts for the period from 01.01.2005 to 24.04.2008 of defendant No.6 Witnesses examined for the defendants:
DW.1 : Sri. R. Sadagopan
169 O.S.25413/2008
DW.2 : Sri. K.V. Venkataramani
DW.3 : Sri. N. Shanmuga Singaram
Documents exhibited for the defendants:
Ex.D1: The certified copy of order sheet in HRC 70/75 proceedings Ex.D2: The agreement dtd.2.12.1978 Ex.D3 to 6: 4 Color photos Ex.D7: Certified copy of deposition in HRC No.10166/1982 Ex.D7(1): Typed copy of spot mahazar of ExD.7 Ex.D8: Appointment letter dtd.09.09.1996 Ex.D9: Trust deed Ex.D10: The cheque dtd.28.02.2007 Ex.D11: The copy of complaint Ex.D11(a): Typed copy of Ex.D11 Ex.D12: UDR No.6/2007 Ex.D13: Certified copy of PCR No.2699/2008 Ex.D14: Certified copy of PCR No.2699/2008 order 02.11.2017 Ex.D15: Certified copy of closure report by the CBI Ex.D16: Certified copy of order dtd.07.01.2011 in RC No.9(A)/2008 Ex.D17: Certified copy of plaint in O.S.No.25632/2008 Ex.P18: Original Lease Deed 16.05.1996 Ex.D19: Deed of cancellation dtd.28.03.2003 170 O.S.25413/2008 Ex.D20: Deed of Reconveyance 24.03.2003 Ex.D21: Deed of Reconveyance 24.03.2003 Ex.D22: Surrender/Cancellation of lease 28.03.2003 Ex.D23: Certified copy of sale deed 03.09.2004 Ex.D24: Certified copy of sale deed 05.07.2004 Ex.D25: Confidential letter Ex.D26: Postal acknowledgment Ex.D27: IA No.16 and affidavit Ex.D28: Certificate issued by Dr. P.L.Prabhakar dtd.04.03.2007 Ex.D29: Death Certificate of Sri. K. Kuppuswamy Naidu Ex.D30: Original registered Will dtd.27.09.2006 Ex.D31: Letter dtd.15.04.2006 by Chamundeshwari Studio and Lab Private Limited to the MD KSFC Ex.D32: Letter dtd.11.05.2006 by Chamundeshwari Studio and Lab Private Limited to the DGM KSFC Ex.D33: Letter dtd.31.05.2006 by KSFC Ex.D34: Letter dtd.12.06.2006 by KSFC Ex.D35: Notice of Meeting dtd.30.08.2006 issued by Sri. K.Kuppuswamy Naidu Ex.D36: Directors report of Chamundeshwari Studio and Laboratory private Limited.
Ex.D37: Letter dtd.04.04.2003 to the sub registrar, Shivajinagar Ex.D38: Bank Account statement regarding deposit made by Sri.K.Kuppuswamy Naidu Ex.D39: Certified copy of pass book of defendant No.4 171 O.S.25413/2008 Ex.D40: Certified copy of Canara Bank statement (page No.22 to 85) Ex.D40(a): Entries are separately marked Ex.D41: Certified copy of Canara Bank statement (page No.1 to 10) Ex.D42: Letter dtd.22.06.2006 by Chamundeshwari Studio and Laboratory private Limited to the senior Manager Canara Bank along with enclosures Ex.D43: Certified copy of order dtd.12.01.2015 in Crl.P.No.3987/2010 Ex.D44: MAA of Chamundeshwari studio and laboratory private limited Ex.D45: MAA of Chamundeshwari studio and laboratory private limited Ex.D46: Certified copy of evidence herein in O.S.No.25632/2008 ExD47: Certified copy of order dtd.03.07.2009 CCC (Crl.)No.12/2008 Ex.D48: Certified copy of order dtd.25.07.2018 in Crl.P.No.4534/2010 Ex.D49 to 53: Photographs dtd.14.05.2006 Ex.D54: CD of the said photos Ex.D55: Certified copy of deed of partial surrender of lease dtd.02.07.2004 (Sri. V.NAGARAJA) IV Addl. City Civil and Sessions Judge, Bengaluru 172 O.S.25413/2008