Karnataka High Court
Umakanth @ Ramakanth vs Sharnappa Patil And Anr on 24 January, 2024
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NC: 2024:KHC-K:959
RSA No. 7382 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7382 OF 2012 (DEC/INJ)
BETWEEN:
UMAKANTH @ RAMAKANTH
S/O VEERSHETTY POLICE PATIL,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O SHAMBELI, TQ: AURAD-B,
DIST: BIDAR.
...APPELLANT
(BY SRI. ANANTH S.JAHAGIRDAR, ADVOCATE)
AND:
1. SHARNAPPA PATIL
Digitally signed S/O SHIVARAYA,
by SACHIN
Location: HIGH
SINCE DECEASED BY LRS.
COURT OF
KARNATAKA
1.(A) ASHOK PATIL S/O LATE SHARANAPPA PATIL,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O GURU NAGAR,
OPPOSITE ZHIRA FUNCTION HALL,
BIDAR-585401.
1.(B) SANJAY PATIL S/O SHARANAPPA PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O GURU NAGAR,
OPPOSITE ZHIRA FUNCTION HALL,
BIDAR-585401.
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NC: 2024:KHC-K:959
RSA No. 7382 of 2012
1(C) LALITA W/O MADHAVRAO SHERIKAR
AGE: 57 YEARS, OCC: AGRICULTURE
R/O LIG COLONY,
BESIDE BIRADAR HOSPITAL ROAD,
BIDAR-585401.
2. NAGSHETTY S/O SHIVRAYA POLICE PATIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
TQ. AURAD-B,
DIST: BIDAR.
...RESPONDENTS
(BY SRI. SACHIN M MAHAJAN, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
18.10.2012 PASSED IN R.A.NO.01/2011 ON THE FILE OF THE
ADDL.DISTRICT & SESSION JUDGE AT BIDAR, CONFIRMING
THE JUDGMENT AND DECREE DATED 18.11.2010 PASSED IN
O.S.NO.185/2004 ON THE FILE OF THE SENIOR ADDL.CIVIL
JUDGE, BIDAR AND PASS ANY OTHER APPROPRIATE ORDER AS
THIS HON'BLE COURT DEEM FIT IN THE CIRCUMSTANCES OF
THE CASE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the plaintiff challenging the judgment and decree dated 18.10.2012 passed in RA.No.1 of 2011 on the file of the Additional District And Sessions -3- NC: 2024:KHC-K:959 RSA No. 7382 of 2012 Judge, Bidar, dismissing, the appeal and confirming the judgment and decree dated 18.11.2010 passed in OS.No.185 of 2004 on the file of the Additional Senior Civil Judge, Bidar, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaint averments are that the plaintiff is the son of Veerashetty. The defendant Nos. 1 and 2 and the father of the plaintiff are the brothers. It is the case of the plaintiff that the grand father of the plaintiff-Shivaraya, and his three sons entered into partition on 05.06.1972 and the schedule property was allotted to the share of the grand father of the plaintiff. It is further stated that, the grand father of the plaintiff-Shivaraya had executed Will dated 18.03.1984 bequeathing the suit schedule property in favour of the plaintiff and pursuant to the same, the plaintiff made an application to the revenue authorities -4- NC: 2024:KHC-K:959 RSA No. 7382 of 2012 seeking modification of the Mutation Register and same was objected by the defendants 1 and 2. Hence, the plaintiff filed OS No.185 of 2004 seeking relief of declaration with consequential injunction in respect of the suit schedule property.
4. After service of summons, defendants entered appearance and filed written statement denying the plaint averments and contended that the father of the defendants died on 21.02.2002 and as such, denied the execution of the Will dated 18.03.1984 on the ground that the said Shivaraya was residing with the daughters and sometimes with defendants 1 and 2 and as such, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration.
6. In order to establish their case, plaintiff got examined three witnesses as PW1 to PW3 and marked 06 -5- NC: 2024:KHC-K:959 RSA No. 7382 of 2012 documents as Exs.P1 to P6. On the other hand, defendants examined two witnesses as DW1 and DW2 and produced 04 documents as Exs.D1 to D4.
7. The Trial Court, after considering the material on record, by its judgment and decree dated 18.11.2010 dismissed the suit of the plaintiff and being aggrieved by the same, plaintiff preferred Regular Appeal in RA.No.1 of 2011 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 18.11.2012 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.185 of 2004. Being aggrieved same, the appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of CPC.
8. This court, by order dated 18.09.2018 framed the following substantial questions of law.
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1. Whether the courts below are justified in law in holding that the Will dated 18.03.1984nis not proved though the plaintiff has produced the original Will that is signed by the testator an more than 2 attesting witnesses and has further examined the PW2 one of the attesting witnesses to the Will who has identified his signature of defendant No.1 who is another attesting witness to the Will ?
2. Whether the courts below are justified in law in holding that the Will is not proved since the plaintiff has failed to prove why the Will is not proved since the plaintiff has failed to prove why the natural heirs are deprived the property, though deprivation of nature heirs does not raise any suspicious circumstance surrounding the Will ?
9. I have heard Sri Ananth S.Jahagirdar, learned counsel appearing for the appellant and Sri. Sachin M. Mahajan, learned counsel appearing for the respondents and perused the record.
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10. Sri Ananth S. Jahagirdar, learned counsel for the appellant contended that, both the Courts below have committed an error that, the Propounder of the Will has not proved the Will as the plaintiff got examined more than two attesting witnesses and therefore, sought for interference of this Court. He also contended that, PW2 has identified the signature of the defendant No.1 on the Will and further both the Courts below on erroneous assumption of law that, there is discrepancy in the date mentioned by the scribe on the Will, dismissed the suit which requires to be interfered with in this Regular Second Appeal.
11. Sri Sachin M. Mahajan, learned counsel for the respondents argued that the finding recorded by the both the Courts below is just and proper and propounder of the Will has not proved the Will as required under law and accordingly, sought for dismissal of the appeal placing the reliance on the judgment of the Hon'ble Supreme Court in -8- NC: 2024:KHC-K:959 RSA No. 7382 of 2012 the case of Kavita Kanwar vs. Mrs.Pamela Mehta, reported in AIR 2020 SC 2614.
12. Having heard the learned counsel appearing for the parties and on careful perusal of the finding recorded by the both the Courts below, there is no dispute with regard to relationship between the parties. Defendants are the brother of Veerashetty (father of the plaintiff). The entire case of the plaintiff revolves around the Will said to have been executed by his grand father-Shivaraya on 18.03.1984. The testator of the Will died on 21.02.2002.
In order to prove the Will, the plaintiff has examined his father as PW2 and one of the witnesses to Will as PW3.
Undisputably, PW2 is interested witness and his deposition cannot be basis to remove the suspicious circumstances in the Will. The scribe-Sri Dastur has signed the documents on 18.04.1984 and it is stated in the Will dated 18.03.1984 (Ex.P5) that the documents was executed on 18.03.1984. I have carefully examined that evidence PW2 and PW3 and same would not satisfy the ingredients to -9- NC: 2024:KHC-K:959 RSA No. 7382 of 2012 accept that the Will as a genuine Will executed by the grand father of the plaintiff. It is well established principle law that the propounder of the Will has to remove the suspicious circumstances in the Will. In this regard, law is settled by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar vs. B. N. Thimmajamma & Others reported in AIR 1959 SC 443. Paragraph 18 of the judgment reads as under.
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of 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."
13. The said aspect has been considered by the Hon'ble Supreme Court in the case of Murthy and others vs. C.Saradambal and others reported in (2022) 3 SCC 209 paragraphs 31 to 39 reads as under:
31. One of the celebrated decisions of this Court on proof of a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:
(AIR p. 451, para 18) "18. ... The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, 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
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that 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
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 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."
32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case, SCC p. 696, para
16)
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 "16. ... (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) 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 propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur, this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner:
(SCC p. 699, para 23) "23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
36. It was further observed in Shamsher Singh case that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao , in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48) "34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
***
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh, wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 signature of the propounder on the will is otherwise proved.
36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37 [Ed.: Para 37 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2007 dated 5-12-2007.] . We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."
38. This Court in Anil Kak v. Sharada Raje , held as under: (Bharpur Singh case , SCC p. 698, para 20) "20. This Court in Anil Kak v. Sharada Raje opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-55) '52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.' "
39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan , this Court opined as under: (SCC p. 576, para 13) "13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
14. Section 63(C) of the Indian Succession Act, 1925 states that the Will has to be attested by two or more witnesses/attestor, each of whom should have seen the testator sign on the Will in his presence or has received from the testator a personal acknowledgment of his signature on the Will. Applying the said principle of Hon'ble Supreme Court to the case on hand as well judgment rendered by the this Court in the case of Sri J.T.Surappa and another vs. Satchidanandendra Saraswathi Swamiji Pubic Charitable Trust and others reported in ILR 2008 KAR 2115, I am of the opinion that, the plaintiff being a propounder of the Will, failed to remove suspicious circumstances while proving Will dated 18.03.1984 as per Ex.P5. Hence, I am of the opinion that,
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NC: 2024:KHC-K:959 RSA No. 7382 of 2012 the appellant/plaintiff failed to establish the ground urged in the memorandum of appeal. Therefore, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. The substantial question of law framed above favours the defendants, and accordingly, Regular Second Appeal is dismissed.
Sd/-
JUDGE SB List No.: 1 Sl No.: 35