Karnataka High Court
Sri Atul M Gurjar vs Sri Mohan M Gurjar on 21 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1293/2010(DEC/PAR)
BETWEEN
1. SRI ATUL M GURJAR
AGED ABOUT 51 YEARS
S/O LATE M.W.GURJAR
2. MISS CHITRA A GURJAR
AGED ABOUT 23 YEARS
D/O ATUL M.GURJAR
3. SRI RAHUL A GURJAR
AGED ABOUT 20 YEARS
S/O LATE M.GURJAR
ALL ARE RESIDING AT
NO.5, GURJAR HOUSE, I FLOOR,
10TH MAIN,
JAYANAGAR 3RD BLOCK
BANGALORE -560 011
...APPELLANTS
(BY SRI YESHU MISHRA, ADVOCATE FOR A1 TO A3)
2
AND
1. SRI MOHAN M GURJAR
AGED ABOUT 45 YEARS
S/O LATE M W GURJAR
2. SRI ADITYA M GURJAR
AGED ABOUT 12 YEARS
3. SRI SIDDARTH M GURJAR
AGED ABOUT 10 YEARS
NO.2 AND 3 ARE SONS OF
SRI MOHAN M. GURJAR
BOTH BEING MINORS ARE REPRESENTED
BY THEIR FATHER AND
NATURAL GUARDIAN
SRI MOHAN M.GURJAR
4. MISS SHYLA M GURJAR
D/O LATE M W GURJAR
R4 IS PASSED AWAY ON 13.07.2019
AS A SPINSTER AND
INTESTATE APPELLANT NO.1
AND RESPONDENT NO.1
BEING HER BROTHER
ARE HER LEGAL REPRESENTATIVES WHO ARE
ALREADY ON RECORD.
5. SMT NANDITA GURJAR
AGED ABOUT 35 YEARS
W/O MOHAN M.GURJAR
3
ALL ARE RESIDING AT NO.5,
GURJAR HOUSE, 10TH MAIN,
3RD BLOCK, JAYANAGAR,
BANGALORE - 11
...RESPONDENTS
(BY SRI SHANKARALINGAPPA NAGARAJ, ADVOCATE FOR
R1;
SRI SUPREETH P, ADVOCATE FOR R2, R3 AND R5;
VIDE ORDER DATED 17.08.2023 R4 DECEASED;
R1 AND A1 ARE THE LEGAL REPRESENTATIVES OF
DECEASED R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W, O-XLI, R-1 OF CIVIL PROCEDURE CODE
AGAINST THE JUDGMENT AND DECREE DATED 13.04.2010
PASSED IN O.S.5545/1996 ON THE FILE OF THE I-ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR DECLARATION AND
PARTITION
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
4
JUDGMENT
Present appeal is filed by the unsuccessful plaintiff challenging the validity of judgment and decree passed in O.S.No.5545/1996 dated 13.04.2010, on the file of Addl.
City Civil and Sessions Judge, Bengaluru (CCH-2).
2. Parties are referred to as plaintiffs and defendants for the sake of convenience as per their original ranking in the trial Court.
3. A suit came to be filed by the plaintiff against the defendant with following prayer in respect of the following properties:
"a) for partition and separate possession of the properties left behind my M.W.Gurjar which are more particularly described in the schedule-A, B, and C hereunder and to hold that the plaintiffs are entitled to 1/3rd share out of the same.
b) to declare that the alleged will dated 28.03.1992 and 25.02.1993 in the name of M.W.Gurjar are void and unenforceable in law.5
c) to grant such other decree, order or relief to which the plaintiffs may be found entitled to under the circumstance of the case including the award of costs in the interest of justice. "
Schedule A All that piece and parcel of the residential property bearing No.5, Gurjar House, 10th Main, Jayanagar 3rd Block, Bangalore -11, together with construction thereon including the residential portion in the first floor in the occupation of the first Plaintiff and Lessee constructed on the site measuring East to West 120 feet and North to South 82 feet bounded on the:
East by : 10th Main Road;
West by : Private Property,
North by : Dr. Subbaramaiah's property, and
South by : Property seized by the Government.
Schedule B
• Fixed Deposits receipt No.696762 for Rs.2,66,888/- dated 22.12.1995 with Bank of Baroda, Jayanagar Branch now in the name of Defendant No. 1 and 5. • TDR/110/85-999569 in the Joint names of M.W. Gurjar and first defendant with SBI, Jayanagar II Block.
• STDR 20/3091232 due on 04.04.1998 for Rs.95,000/- at SBI.
6• SB Account No.01190030208 with balance Rs.
18,985/-
• All furniture, fittings, gadgets, almirahs, etc. Available in the custody of the first defendant.
Schedule C Details of Share Certificates in the name of M.W. Gurjar.
Name of the Company No. of Shares 1. Kirloskar Electric 2370 2. Kirloskar Brothers 1262 3. Kirloskar Pneumatic 2916 4. Kirloskar Consultants 1140 5. Kirloskar Systems 112 6. Precision Tooling Systems 500 7. Poona Industrial Hotel 400 Total 8700
(The above mentioned properties are hereinafter referred to as 'suit properties' for the sake of convenience.)
4. Plaint averments reveal that first plaintiff and defendant Nos.1 to 4 are the children of one Mahav Whaman Gurjar, who died intestate 21.02.1996 leaving behind plaintiffs and defendant Nos.1 to 4 as legal heirs.
7Defendant No.5 is the wife of defendant No.1 and she has been arraigned as party to the proceedings as some of the bank deposits of late M.W.Gurjar are in her name.
5. It is further contended that Sri M.W. Gurjar was the absolute owner of property bearing No.5, situated at 10th Main, Jayanagar, 3rd Block, which is more fully described in schedule - A to the plaint. It was the self acquisition of Sri.M.W.Gurjar. During his life time, he worked in Kirloskar Group of companies and retired from the service in the year 1973 and was getting honorarium in a sum of Rs.2,500/- per month, till June 1995.
6. It is further contended that Sri. M.W.Gurjar has invested money in stocks and shares as is described in schedule - B. Defendant No.4 being mentally challenged and slow learner lady, she could not get married.
Therefore, Sri. M.W.Gurjar has constituted a private trust for her benefit. Plaintiff No.1 and defendant No.1 have been made as trustees to the said private trust.
Defendant No.4 is working in Bethany's School at 8 Koramangala on nominal salary. Sri. M.W. Gurjar had acquired shares and stocks during his life time and they are in the custody of defendant No.1, which are more fully described in schedule - B and C to the plaint as referred to supra.
7. It is further contended in the plaint that defendant No.1 was not accepting any responsibility since beginning of his life and Sri. M.W.Gurjar was worried about his waywardness and defendant No.1 never shown any care or love towards Sri. M.W.Gurjar. Defendant No.1 was also not interested in employment since the beginning and therefore, he was put into business line by investing the amount by Sri. M.W.Gurjar.
8. It is further contended that site in Kothrud extension in Puna out was purchased by Sri. M.W.Gurjar from his funds in the name of defendant No.1 which was sold and out of the sale proceeds, an apartment was purchased in Mysore City by defendant No.1. Sri. M.W.Gurjar was not happy with the behaviour of defendant No.1.
99. It is also alleged that defendant No.1 was in the bad habit of ill-treating defendant No.4 and he was reluctant and did not accept the responsibility to get himself married. Sri. M.W.Gurjar, prevailed on defendant No.1 and ultimately defendant No.1 married in the year 1982 when he was aged 31 years.
10. Plaint averments further reveal that after the marriage, wife of the defendant No.1 followed the footsteps of defendant No.1 in ill treating M.W.Gurjar and defendant No.4, resulting in physical assault being made by defendant No.1 and his wife to defendant No.4.
11. Plaintiff No.1 and M.W.Gurjar, some how put up with the misdeeds of defendant No.1, thinking that first defendant will improve himself as his age advances. Sri. M.W.Gurjar was suffering from old age ailments like Diabetes and Hypertension and tolerated the misdeeds of defendant No.1. Sri. M.W.Gurjar had eye sight problem after the death of his wife in the year 1975. Sri. M.W.Gurjar, became mentally week and he was feeling 10 insecure and he was not acting like a normal person.
Efforts made by the plaintiffs to boost his morale did not yield any positive result. It is also contended that at the fag end of life of M.W.Gurjar, he was suffering from mental depression resulting in Senile Dementia. The behaviour of defendant No.1 and his wife largely contributed for the health problem of M.W.Gurjar and the humiliation was aggravated on the part of defendant No.1 and his wife to M.W.Gurjar. The intension of defendant No.1 and his wife was to knock off all the assets of M.W.Gurjar by indulging in manipulative practice.
12. It is contended in the plaint that Sri. M.W.Gurjar suspected foul play by defendant No.1, he lodged a complaint with Canara Bank and got the locker opened and thereafter on 17.01.1994 the jewels kept in locker were divided among the defendant No.1, defendant No.4 and plaintiff No.1. Defendant No.1 having been annoyed with the same, picked up quarrel with plaintiff No.1 and manhandled him and the said action on the part of 11 defendant No.1 was somehow tolerated by the first plaintiff.
13. It is further contended in the plaint that the health condition of M.W.Gurjar further deteriorated in the year 1991 and he was regularly attended by Doctor M.Maiya, Physician and Cardiologist of Maiya Nursing Home, Jayanagar 1st Block. Eye sight of M.W.Gurjar also became week due to Diabetes and therefore he was advised to undergo cataract surgery in the year 1991. As such, cataract surgery was conducted on 02.04.1992 at Prabha Eye hospital and during the Eye surgery, defendant No.1 and his wife did not take any interest and attended M.W.Gurjar. After discharge from the hospital, M.W.Gurjar was compelled to stay in the ground floor with the defendant No.1 and at that time, plaintiff No.1 and his wife were prevented from taking care of M.W.Gurjar. Dr.Maiya and Ramachandra Murthy opined that M.W. Gurjar is suffering Senile Dementia after the Eye surgery.
1214. Taking advantage of fragile health condition of M.W.Gurjar, defendant No.1 picked up the quarrel with M.W. Gurjar and all the immovable and movable assets held by M.W.Gurjar was sought to be settled in favour of defendant No.1. Unable to bare with the harassment imparted to M.W.Gurjar, he has signed on some papers which has been concocted by defendant No.1 as a Will dated 25.02.1993.
15. It is specifically contended in the plaint that M.W.Gurjar had no testamentary capacity to execute the alleged Will and defendant No.1 somehow managed to get executed the Will in his favour. It is also contended that M.W.Gurjar died on 21.02.1996 and immediately after the death, plaintiff No.1 sent common relatives to defendant No.1, seeking partition of the property which was refused by furnishing the copy of the Will. The plaintiffs therefore, had to file the suit with the aforesaid prayer against the defendant.
1316. In pursuance of the suit summons, defendant Nos.1 and 5 appeared before the Court and filed detailed written statement accepting the relationship among the parties and date of death of M.W.Gurjar and his wife. Other allegations in the plaint were denied as false. These defendants maintained that M.W.Gurjar had a joint locker in Canara Bank, wherein family jewels were kept by M.W.Gurjar.
17. During the time of Eye surgery, plaintiff No.1 somehow prevailed upon Sri. M.W.Gurjar and his locker key was stolen away by the plaintiffs. When defendant No.1 and his family went to Mysore, plaintiff No.1 got the locker forcibly opened and took away the Jewellery. The said incident resulted in strained relationship between M.W.Gurjar and plaintiff No.1. When the plaintiff No.2 was also to be operated, plaintiff No.1 and his wife insisted breaking upon of the locker in Canara Bank since the key had been lost. After breaking open the locker, they took the jewels from the locker.
1418. It is further contended that after recovery from eye surgery, M.W.Gurjar expressed his willingness to execute the Will and he contacted his family advocate by name John D'Souza and executed a Will dated 06.11.1992 bequeathing the entire Gurjar's house in favour of defendant No.1.
19. However, Sri. M.W.Gurjar did not want to take any chance and wanted slightly modify the Will dated 06.11.1992 and therefore, he executed another Will on 23.02.1993, bequeathing Gurjar's house in favour of defendant No.1 and defendant No.4 was provided to stay in the house till her life time. Plaintiff No.1 was permitted to remain in the 1st floor of M.W.Gurjar's house as a tenant for 10 years, subject to paying the rents. The said Will was also registered in the office of Sub Registrar.
20. It is also further contended that these defendants during the life time of M.W.Gurjar, he was very considerate towards plaintiff No.1 and despite the fact that first plaintiff owned a house in RMV extension, Bangalore, 15 plaintiff No.1 allowed to occupy a portion of 1st floor in schedule - A property on a monthly rent.
21. A registered lease deed was also executed in favour of plaintiff No.1 in the year 1982 which was renewed from time to time. Wife of plaintiff No.1 being doctor, has attested the said lease deed as a witness.
22. Being not satisfied with the house being given in RMV extension, plaintiff No.1 with an intention to further grab the assets of Sri. M.W.Gurjar, went to the extent of physically assaulting defendant No.1 with a tennis racquet.
A criminal case was also registered in this regard. But, it was withdrawn subsequently.
23. They further contended that Sri. M.W.Gurjar led a normal happy life to full extent and the wills that were executed by him were of free volition and therefore, the suit is to be dismissed.
24. The details of the contents of the Will were also extracted in the written statement. Based on the rival 16 contentions, learned Trial Judge raised the following issues.
1. Whether the plaintiffs prove that the parties to the suit are in joint possession of the suit 'A' schedule property and is the joint family property of the parties to the suit?
2. Whether the plaintiffs prove that the Will dated 28.03.1992 and 25.02.1993 executed by Late M.W.Gurjar are void and unenforceable?
3. Whether the plaintiffs prove that the Defendants 1 and 5 obtained the signatures of Late M.W.Gurjar without disclosing the reason and transferred S.B.Account of Bank of Baroda, Jayanagar Branch and also the F.D Amount in the said bank in their joint name?
4. Whether the plaintiffs prove that Late M.W.Gurjar was suffering from 'Senile Dementia' and no Disposable state of mind and was not mentally sound ?
5. Whether the plaintiffs prove that he was paying a monthly rent of Rs.400-00 only towards the leased out construction site to Late M.W.Gurjar?
176. Whether Defendants 1 and 5 prove that Late M.W.Gurjar has made a Will dated 06.11.1992 and 23.02.1993 bequeathing his property to the first defendant and as alleged in para-13 of the written statement?
7. Whether Defendants 1 and 5 prove that Late M.W.Gurjar executed the Wills out of the free and disposal state of mind?
8. Whether Defendants 1 and 5 prove that plaintiff No.1 and his wife put Late M.W.Gurjar in fear and made to execute a will dated 28.02.1992?
9. Whether Defendants 1 and 5 prove that the court fees paid is insufficient?
10.Whether the plaintiffs prove that they are entitled for 1/3rd share in the suit schedule properties and for separate possession of 1/3rd share in the 'A' schedule property by metes and bounds?
11.To what order or decree?"
25. In order to prove the plaint averments, plaintiff No.1 Atul M Gurjar got examined himself as PW-1 and three Doctors by name; Ramachandra Murthy, M. Mayya and Ajit 18 V Bhide have been examined as PWs-2 to 4 on behalf of the plaintiffs.
26. Plaintiffs relied on eleven documents in support of their case which were exhibited and marked as Exs.P-1 to Ex.P-11, comprising of Will dated 25.02.1993 as Ex.P.1, Will dated 28.03.1992 as Ex.P.2, Medical records of Late M.W.Gurjar as Ex.P.3 to Ex.P.6, Pass Books as Ex.P.7, Assessment order as Ex.P.8, Letter dated 29.06.1984 as Ex.P.9, Personal Diary as Ex.P.10 and Pass Books as Ex.P.11.
27. As against the oral and documentary evidence placed on record on behalf of the plaintiffs, defendant No.1 Mohan M Gurjar got examined himself as DW-1 and one of the attesting witnesses to the last Will executed by Sri. M.W. Gurjar, by name Sri. S.V. Amrute, has been examined as DW-2.
28. In all thirty nine documents were relied on by the defendants which were exhibited and marked as Exs.D-1 19 to Ex.D-39 comprising of Letters as Exs.D.1 to 10, Voucher as Ex.D.11, Bank Challans as Ex.D.12 to 15, Certified copy of the lease Deed as Ex.D.16, Will as Ex.D.17 to 18, Receipt as Ex.D.19, Acknowledgment as Ex.D.20, Will as Ex.D.21, Draft of Will as Ex.D.22, Signature of Late M.W.Gurjar as Ex.D.22(a), Income Tax returns as Ex.D.23, Receipt issued by Bangalore Club as Ex.D.24, Letter issued by Precision Tooling Systems Ltd. As Ex.D.25, Letter Written by Late M.W. Gurjar as Ex.D.26, Receipt issued by Late M.W.Gurjar as Ex.D.27, Letter regarding shares as Ex.D.28-30, Statement of Account as Ex.D.31-32, Credit Advice as Ex.D.33, Interest Warrants as Ex.D.34-35, Bank Challans as Ex.D.36 to 38 and Photograph as Ex.D.39.
29. On conclusion of recording of evidence, learned Trial Judge heard the parties in detail and on cumulative consideration of 'the oral and documentary evidence placed on record by the parties, dismissed the suit of the plaintiffs by holding that the plaintiffs have failed to prove that the suit properties are available for partition and 20 upheld the last Will executed by Sri. M.W.Gurjar, vide Ex.D-21.
30. Being aggrieved by the said judgment and decree, the plaintiffs have preferred the present appeal on the following grounds:
The learned City Civil Judge committed grave error of law and facts in dismissing the suit filed by the appellants for partition and separate possession of their 1/3rd share in the plaint schedule properties.
The learned City Civil Judge committed grave error of law and facts in holding that 'it is clear that the Will dated 25.02.1993 Exh.D- 21 executed by late M.W.Gurjar in favour of Defendant No.1 in respect of suit schedule property is not at all disputed by plaintiffs herein. This observation is totally perverse because the entire dispute revolved around the alleged Will at Exh.D-21 in the name of Late M.W.Gurjar.
The learned City Civil Judge misdirected himself on the facts of the case while assuming that the Will dated 25.02.1993 is not in dispute. Since M.W.Gurjar had no testamentary capacity to create any Will at that time, the same was disputed by the appellants and medical evidence of the experts who had treated M.W.Gurjar, during his life time had been placed on record to prove 21 that M.W.Gurjar was suffering of senile dementia and thus he had no testamentary capacity.
The learned City Civil Judge committed grave error of law and facts in referring to the decision of the Apex Court in case of Ramabai Padmakar Patil V/s Rukmini Bai Vishnu Ekhande & others, Reported in ILR 2004 KAR 440 which had no relevance to the facts of the present case. Admittedly the first respondent had no explanation or answer to give as to why that testator had excluded his under privileged daughter and the first son from inheriting the huge property belonging to him. Under these circumstances the observation of Court below to the effect that the first respondent has removed the suspicion and therefore no importance need be given to that aspect of the matter is contrary to law.
The learned City Civil Judge failed to deal with the main issue of the suit, which is the testamentary capacity of M.W.Gurjar. There was strong evidence let in through three medical experts, who had known the patient for long time before the alleged date of execution of the alleged Will at Ex.D-21. The fact that the respondent No.1 did not even prove that his father had testamentary capacity at the time of execution of Ex.D-21 was ignored by the Court. His evidence before the Trial Court had clearly shows that he was no way associated in getting the medical attention provided to his father and all such care had been taken by the first appellant. The documents produced by the first appellant before the 22 Court below and the medical evidence of the experts was not dealt properly before dismissing the suit.
The learned City Civil Judge committed grave error of law and facts in assuming that admitting of signatures of the deceased person is not admission of his testamentary capacity. Merely because the patient suffering from senile dementia could put his signatures it did not mean that he knew or he had understood the contents of the papers on which his signature was obtained. Inspite of clear evidence being placed on record to prove that M.W.Gurjar was not having testamentary capacity, the learned Judge of the Court below thinks that signatures found on records is enough to assume due execution of a Will. This erroneous thinking of the Court has resulted in grave injuries.
The learned City Civil Judge erred in referring to the attendance of M.W.Gurjar to a marriage of the relative as the basis of thinking that the testator had the testamentary capacity. The medical evidence of the Psychiatrist Dr.Ajit V.Bhide, PW-4 to the effect that the patient had retained only 40% mental capacity and that he had also spoken about degeneration of the brain which had occurred in case of M.W.Gurjar shows the mental condition of the person. That assessment was based on examination conducted by him on 24-6-1992 and the Will in the name of M.W.Gurjar had been created/got up by the first respondent on 25-02-1993. The fact that the senile dementia is a progressive - degenerative disease 23 ought to have been considered by the Court below to hold that the first respondent has misused the deficiency in the brain of his father to create the Will as per Exh.D-21.
The learned City Civil Judge failed to consider the conduct of DW-2, alleged attestor to the Will, who had suppressed the true facts as could be seen from his depositions and the undisputed medical records. He had gone to the extent of denying that M.W.Gurjar was suffering of chronic diabetics from 1966 and falsely deposed to the effect that the relationship between the first appellant and his father was not good. Reading of his depositions, in the cross examination, makes clear that he is most undependable witness and his evidence is not trust worthy.
The learned City Civil Judge committed grave error of law and facts in directing the appellants to value the suit for partition and separate possession under Section 35 (1) of the Karnataka Court Fees & Suits Valuation Act, 1958 and to pay the Court Fee on the market value. The undisputed fact that the appellants are living in a portion of the plaint schedule property and they are in possession of the property sought for partition is not considered in the proper perspective. Hence that part of the judgment requires to be set aside.
The learned City Civil Judge erred in observing that an eye specialist, PW-2, cannot give his opinion with regard to mental condition of M.W.Gurjar and similar 24 observations were made against PW-3. Unfortunately, the most dependable medical evidence let in through experts and senior Specialists in each field is belittled by the Court below. The evidence of three experts (PW-2, PW-3 & PW-4) let in to prove that Late M.W.Gurjar had no testamentary capacity either to cancel the Will dated 28- 03-1992 or to execute the Will dated 25-02-1993 as per Exh.D-21 has not been considered by the Court as required in law.
The Court below has failed to consider the false plea and contradictory evidence of DW-1 to find out the veracity and credibility of his evidence. Even though the first defendant did not establish the testamentary capacity of Late M.W.Gurjar for executing the Will at Exh.D-21. Under these circumstances the Court below ought to have negatived Issue No.6.
The Court below failed to consider the circumstances which had proved that the first defendant had got prepared the Will at Exh.D-21 & D-22 to suit his convenience, in the name of his father, through his Advocate Sri Jawaji Srinivasulu who had appeared for him in the Court below. The fact that the deceased M.W.Gurjar had his own legal advisor i.e., Mr.John D'Souza and that there was no reason for him to have changed the Advocate only for the purpose of executing the Will in favour of the first respondent to the exclusion of his under privileged daughter and his first son. The alleged attestor to the Will who had colluded with one of 25 his cousin to create the Will had tendered evidence which per se snows that he was not dependable witness to prove the mental capacity and due execution of the Will of Late M.W.Gurjar.
The learned Judge failed to consider the contents of Exh.D-21 which was in the form of abuse to the first plaintiff. The first respondent had shown his greediness to knock off the property of the father by getting drafted a Will by making false accusations against the first appellant. When the appellants were looking after M.W.Gurjar during his life time by providing much required medical assistance and nourishment there was no circumstances or reason for the beloved father of the first appellant to have used such nasty language. This also proves that the Will is manipulated by the first respondent.
The learned City Civil Judge erred in not finding out the truth from the material evidence placed on record before the Court to prove that each rupee invested to acquire the site at RMV Extension, Bangalore by the first appellant and for making construction without any financial aid from his father. On the contrary the Will got manipulated by the first respondent had mentioned that late M.W.Gurjar had acquired that property in the name of first appellant. This material contradiction was not given due weightage while deciding the suit.
26 Looking from any angle, the judgment of the Court below is contrary to law and material placed on record. Hence the same requires to be set aside.
31. Reiterating the grounds urged in the appeal memorandum, counsel for the appellant - Sri Yeshu Mishra, vehemently contended that the learned trial Judge has not properly appreciated the material evidence on record and wrongly dismissed the suit of the plaintiffs resulting in miscarriage of justice and sought for allowing the appeal.
32. He further contended that the alleged Will marked at Ex.D.21 is not properly proved by the first defendant, who is the propounder and number of suspicious circumstances that has surrounded the execution of the Will, though established before the Court, learned trial Judge failed to appreciate the same.
33. Sri Mishra also contended that oral evidence of P.Ws.2 to 4 who are the doctors who treated deceased M.W. Gurjar during his life time is totally ignored by the 27 learned trial Judge by accepting the case of the first defendant in upholding Ex.D.21, resulted in miscarriage of justice.
34. It is further argued by Sri Mishra that the health condition of Sri M.W. Gurjar was very fragile and material evidence on record amply establish that executant of the Will was under the influence and clutches of first defendant and therefore, Ex.D.21 is to be held invalid as the first defendant has taken active role in execution of the alleged Will marked at Ex.D.21.
35. He further pointed that the factual circumstances in this regard is established in the cross-examination of the defendant witnesses and the same is ignored by the learned trial Judge by considering the case of the parties.
36. In support of his arguments, he has filed written synopsis and written arguments along with the following judgments. The same are culled out hereunder:
28GENEALOGICAL TREE Sri M.W. Gurjar Wife - Smt. Kamalesh M. Gurjar 1 Sri Atul Gurjar 2. Sri Mohan 3 Ms. Shyla Gurjar (Son)-P1 Gurjar(Son)-D1 (Daughter) D4 Chitra G-P2 Nandita-Wife - D5 Rahul G-P3 Adithya G (Son) - D2 Siddarth G(Son) - D3 The Trial Court has given a finding on the issues based on surmises and conjectures without sifting the evidence on record resulting in an erroneous judgment.
The essentials to be proved by the propounder of a Will are -
A) The proof of execution and attestation of the Will in terms of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act.
B) The proof that the Testator had mental capacity to execute a testamentary document/Will.
29C) If the Will is attacked tainting it to be executed under suspicious circumstances, then the propounder of the Will has to dispel the suspicion.
In the present case, the Defendant No.1 has failed to address the above three factors by adducing proper evidence and the execution of the Will, the mental capacity of the Testator to execute the Will and the suspicious circumstances surrounding the Will are not satisfactorily explained by adducing evidence by the Defendant no.1. Therefore, the Will at Ex.D21 has not been proven in accordance with law. Following is the submission on the same -
A) The proof of execution and attestation of the Will in terms of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act.
i) It is the mandate of Section 68 of Evidence Act that, if an attesting witness is available then, the Will has to be proven in a Court of Law by examining the attesting witness, who must prove two factors i.e. the execution of the Will by the Testator and attestation by both the attesting witnesses.
ii) In the present case one Sri S.V. Amrute (DW2) has been examined as the attesting witness to the Will 30 dated 25.02.1993 (Ex.D21). On reading of the Affidavit filed as evidence of DW2 it is clear that, he mentions signatures by Sri M.W. Gurjar on the Will, but fails to prove or even mention attestation by the other attesting witness Sri S.S. Deshpande who has not been examined. It is the mandate of Section 63(c) of the Indian Succession Act that two or more attesting witnesses must put their signatures to the Will on seeing the Testator sign the Will. The signature of the Testator and the signature of the attesting witnesses has to be proven by the attesting witness as required under Section 68 of the Evidence Act. If the witness has signed or attested the Will in the absence of each other then, they must both be examined to prove attestation.
iii) In the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in 2003 (2) SCC 91, the Hon'ble Supreme Court has laid down as follows -
"7. We think it appropriate to look at the relevant provisions, namely, Section 63 of the Indian Succession Act, 1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which read:
Section 63 of the Succession Act *63. Execution of unprivileged wills-Every testator, not being a soldier employed in an expedition nor engaged in 31 actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a)-(b)***
(c) 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 seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or 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 Evidence Act "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:
Provided.....
Section 71 of the Evidence Act 32
8. To say a will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with ie. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
10...................It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act 33 requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz.
attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all 34 the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
Similar view has been expressed by the Hon'ble Supreme Court in the Judgments reported in 2008 (15) SCC 365, 2003 (2) SCC 91,2007 (9) SCC 728, 2009 (4) SCC 780.
The Hon'ble Apex Court in the matter of Yumnam ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh & others reported in 2009 (4) SCC 780 has held as follows:
Para 11. As per provisions of Section 63 of the Succession Act, for the due execution of a will (1) the testator should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;35
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator Para 12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document Para 13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.36
In the latest Judgment of the Hon'ble Supreme Court on the question of execution and attestation of the Will, the Hon'ble Supreme Court has held that proving execution of the Will as required under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act are mandatory.
In the case of V. Kalyanaswamy v. L. Bakthavatsalam (2020 SCC OnLine SC 584), the Hon'ble Supreme Court has held as follows:-
Para 83. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the 37 document despite denial of the execution of the document by the attesting witness.
In the case of Venkatachala Iyengar v. Thimmajamma & Ors a Full Bench of the Hon'ble Suprme Court has held that as follows:-
Para 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 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 38 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 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.
The above proposition has been followed in various Supreme Court's Judgments including Judgments reported in 2010 (5) SCC 770 and Judgment of this 39 Hon'ble Court in the case of S. Krishnarao v.M.J. Vittal & Ors.
In view of the above requirement which is absolutely mandatory for proof of the Will, the witness DW2 Sri S.V. Amrute has failed to prove the attestation by the other attesting witness. In such circumstances, the execution and attestation of the alleged Will dated 25.02.1993 Ex.D21 has not been proven as per the requirements of law laid down by the Hon'ble Supreme Court in Janki Narayan Bhoir's case.
The reading of the entire Affidavit filed as evidence for DW2 and his cross-examination do not prove to any extent whatsoever the attestation of the Will by the other attesting witness and at the same time, the other attesting witness has not been examined to prove attestation. In view of the same, the alleged Will dated 25.02.1993 Ex.D21 has not been proved and the Will should not have been upheld by the Trial Court on this count alone for the fundamental and mandatory requirement not being complied.
B) The proof whether the Testator had mental capacity to execute a testamentary document/Will.40
i) It is the duty of the propounder of the Will to satisfy the Court that the Testator or the Executor of the Will had sound state of mind to comprehend and understand the effect of execution of the Will or in other words, he had sound mental capacity to execute a testamentary document.
In the case of Balathandayutham and another v. Ezhilarasan reported in 2010 (5) SCC 770, the Hon'ble Supreme Court has held as follows:-
Para 15. Going by this test, as we must, we find that both the wills, Ext. B-19 and Ext B-20 are surrounded by suspicious circumstances. The ratio in H. Venkatachala [AIR 1959 SC 443] is that in such a situation the Court "would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy, and, unless it is satisfactorily discharged, courts will be reluctant to treat the document as the last will of the testator." (See AIR p. 452, para 20.) Following the aforesaid principle, this Court is constrained to hold that the appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding Exts. B-19 and B-20. As such there is no reason for us to find any error in the judgment of the High Court.41
Similar view has been taken in the Judgment reported in 2009 (3) SCC 687.
Mere registration of Will is not sufficient to remove suspicion reported in 2010 (5) SCC 274.
ii) The burden of proof of sound mental capacity of Testator at the time of execution of the Will is on the propounder. A feeble and uncertain mind affected by mental conditions which could render the Testator incapacitated to execute a testamentary document would lead to a conclusion that the Testator had no soundness of mind to make a Will.
iii) The Defendants have not produced any evidence to show that Sri M.W. Gurjar had a sound state of mind at the time of executing the alleged Will dated 25.02.1993 Ex.D21. However, if the evidence of DW2 has to be considered he says that Sri M.W. Gurjar was not a diabetic patient. The said statement is contrary to the fact that Sri M.W. Gurjar was diabetic since 1967 and there is documentary evidence produced at Ex.P6 in a letter dated 24.10.1967 by Dr. M. Shivaram for the same. He further says that, he is not aware that Sri M.W. Gurjar was admitted to Maiya Nursing Home on 42 several occasions and he does not know the doctors who treated Sri M.W. Gurjar.
iv) DW2 also states that, he is not aware that due to old age Sri M.W. Gurjar was suffering from Senility.
v) DW2 has not stated anything about the health of Sri M.W. Gurjar in detail and all his statements are contrary to the medical records produced at Ex.P3 to Ex. P6.
vi) Three witnesses have been examined as PW2 to PW4 who are doctors and who have spoken about the mental health of Sri M.W. Gurjar being affected by Senile Dementia. The medical record produced at Ex.P3 is from Maiya Nursing Home on 02.06.1992 there is a statement diagnosing and mentioning the state of mind of Sri M.W. Gurjar which reads " Has episodes of confusion and hallucination".
vii) Similarly, at Ex. P5 there is a mention by doctor Ajith V. Bhide (Ex.P5). "Patient seems to have been hallucinating on and off following cataract surgery about two months ago. Also, frequently seems disoriented, irritable. Further it is stated at Ex. P5 on 25.06.1992 as "answers many questions relevantly but tersely. However, gives inappropriate answers to some questions. Perplexity →→ mild emotional 43 liability + Orient Poor to time & place. Better oriented person. Judgment impaired." Such documentary evidence has not been impeached in any manner whatsoever.
viii) The Trial Court has failed to appreciate the medical records and the evidence of PW2 to PW4 and brushed it aside for no reasons whatsoever. Merely, alleging that the 1st Plaintiff's wife was doctor and she has played a role with the doctors to show that Sri M.W. Gurjar did not have sound state of mind. Merely, making such allegation without any proof especially in the light of the fact that the 1st Defendant has admitted that the Plaintiff and his wife were attending to Sri M.W. Gurjar for all his medical needs reflects that the Trial Court has not given due credence to the evidence of the doctors PW2 to PW4 who are reputed medical practitioners in Bengaluru for several decades.
C) If the Will is attacked tainting it to be executed under suspicious circumstances, then the propounder of the Will has to dispel the suspicion.
The suspicious circumstances shrouding the execution of the Will are as follows:-
44i) The Plaintiff No.1 Sri Atul Gurjar is named as an Executor along with Defendant No.1 in the Will dated 25.02.1993 (Ex.D21) An Executor is named by a Testator only if he has good relationship and faith in him. The allegation that the 1st Plaintiff did not have good relationship with Sri M.W. Gurjar is therefore false. Therefore, disinheritance of the 1st Plaintiff in the Will gives raise to suspicious circumstances.
ii) Sri Javaji Srinivasalu, Advocate is the lawyer who has drafted the Will (Ex.D21). The same Sri Javaji Srinivasalu has represented the 1st Defendant and filed the written statement. The 1st Defendant refused to initially admit that Sri Javaji Srinivasalu was his advocate in the suit during his cross- examination. The same gives raise to suspicious circumstances that the 1st Defendant has taken active role in preparation of the Will along with his Advocate Sri Javaji Srinivasalu.
iii) Sri. Javaji Srinivasalu has not been examined and the Draft Will Ex D22 has been produced from the custody of the Defendant No.1 which raises serious suspicion about the draft Will as well as the Will dated 25.2.1993 Ex D21. Adverse inference should have been drawn against the Defendant no.1 fro not 45 examining Sri. Javaji Srinivasulu who could have thrown light on the mental capacity as well as the draft Will.
iv) There are two signatures of Sri M.W. Gurjar on each page of the Will which has not been explained, which also gives raise to suspicion.
v) 4th Defendant Ms. Shyla Gurjar who is a slow leaner and not very worldly wise has also been disinherited. A father would not disinherit a daughter who could not take care of herself generally.
vi) The Fixed Deposits of Sri M.W. Gurjar have been appropriated by the 1st Defendant and no accounts and details have been provided although the said proceeds from the Fixed Deposits were provided to be equally distributed among the two sons, but the same were appropriated by the 1st Defendant alone. On the contrary, the 1st Defendant admits that the share in the jewellery was given to him and his sister's share in the jewellery was also given to the 1st Defendant. The Hon'ble Supreme Court has held in the case of V. Kalyanaswamy V. Bakhtavatsalam that if an incorrect statement is made in the Will then, it gives right to suspicion.
46vii) The 1st Defendant has not produced any evidence to show that he has taken care of his father except for his oral testimony. He has not even produced a medical record or any other kind of evidence to prove that he has taken care of his father or Sri M.W. Gurjar had a sound and disposing state of mind.
viii) A suspicion arises in view of the fact that Sri M.W. Gurjar executed a Will dated 28.03.1992 which is a registered document (Ex.P2) and further he has executed another Will dated 06.11.1992 (Ex.D18) which is attested by a Notary Sri John D'Souza and yet another Will dated 25.02.1993 (Ex.D21) within a span of 11 months gives raise to suspicious circumstances that he had uncertain and feeble state of mind or the said Wills were being made under some external forces and not on his own volition and free consent. All the three Wills are found in the custody of the 1st Defendant, but the 1st Defendant does not produce the original of the Will dated 28.03.1992 which is a registered Will and the property was distributed among the grandchildren by Sri M.W. Gurjar. The non-production of the said Will by Defendant No.1 creates suspicious circumstance.
ix) There is a factual mistake in the Will where it is said that a Plot was purchased by Sri M.W. Gurjar at RMV 47 Extension, Bengaluru for the 1st Plaintiff. There is no evidence for the same whatsoever. On the contrary, Ex.D1 goes to show that Sri M.W. Gurjar is questioning as to how the 1st Plaintiff got money to pay for the RMV Extension Plot. The accounts for having put up construction by the 1st Plaintiff in the RMV Extension Plot have been produced at Ex.P10.
On the contrary, the 1st Defendant admits that Sri M.W. Gurjar has purchased a Plot for him at an upmarket locality at Kothrud in Pune. The said fact has been suppressed and only in cross-examination the 1st Defendant admits to the same. Therefore, there was no reason for Sri M.W. Gurjar to disinherit the 1st Plaintiff.
x) In the Will dated 06.11.1992 (Ex.D18) Sri M.W. Gurjar is stated to have mentioned that a sum of Rs.1,70,000/- was to be paid to the 1st Plaintiff as he has put up construction, but in the Will dated 25.02.1993 the said statement is not made, which is a serious suspicious circumstance.
xi) DW2 the attesting witness goes to state that Rs.2,50,000/- was paid by Sri M.W. Gurjar for construction of building in RMV Extension by 1st Plaintiff. The same is not the case of the 1st Defendant or statements in any of the Wills of Sri 48 M.W. Gurjar. On the contrary, it has been stated that the construction was put up by the 1st Plaintiff at his expense. DW2 is therefore deposing to please 1st Defendant.
In the matter of Shivakumar and others V. Sharanabasappa reported in 2021 (11) SCC 277 and in H.Venkatachala Iyengar v. B.N.Thimmajamma reported in AIR 1959 SC 443, the Hon'ble Supreme Court has held that the disposing state of mind has to be proved at the time of execution of the Will by the propounder of the Will to satisfy the conscience of the Court, failing which the Will has to be disbelieved.
The Defendant has failed to prove the Issues No.6 to 8.
1. No independent witness has been examined to prove the sound state of mind of Sri M.W. Gurjar although Issue No.7 is very clear in resting the burden of proving sound and disposing state of mind on 1st Defendant. Except for the self-serving statement that Sri M.W. Gurjar was having sound state of mind, no evidence has been produced for the same.
2. On the other hand, PW2 to PW4 have been examined to show that Sri M.W. Gurjar was having serious 49 issues of comprehension and he had hallucination, lack of judgment and fear of death, etc. as evidenced from medical records at Ex.P3 to Ex. P6. The 1st Defendant and DW2 go to an extent of denying that Sri M.W. Gurjar was diabetic since 1967 itself which is contrary to the medical records.
3. There is absolutely no evidence to prove that Plaintiff No.1 and his wife put fear in the mind of Sri M.W. Gurjar to execute Will dated 28.02.1992. In fact, the said Will is in the custody of the 1st Defendant and he has not produced the original although he admits that he had read the same from the papers found from Sri M.W. Gurjar's room after his demise. The same calls for drawing adverse inference against the 1st Defendant for suppressing material documents from the Court."
Citations Referred By Advocate for
Appellant
1. Lalitaben Jayantilal Popat v.
Pragnaben Jamnadas Kataria, (2008) 15 SCC 365
19. Mr Priyadarshi has drawn our attention to a decision of this Court in Joyce Primrose Prestor v. Vera Marie Vas [(1996) 9 SCC 324] . In that case, the will was a "holograph will". The writing of the testatrix was proved. The question 50 which arose for consideration therein before this Court was as to whether the will was surrounded by suspicious circumstances. This Court noticed a passage from the Laws of Will in India and Pakistan, by Mantha Ramamurthi, at pp. 81-82, which reads as under: (SCC pp. 330-31, para 13) "If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim omnia presumuntur rite esse acta, applies, unless it is clearly proved by the attesting witnesses that the will is not in fact duly executed. The court of probate has long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.
The maxim omnia presumuntur rite esse acta is an expression in a short form, of a reasonable probability, and of the propriety in point of law on acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established. In Blake v. Knight [(1843) 3 Curt 547 : 1 LT OS 208] Sir Herbert Jenner Fust observed:
'is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the will was actually signed in their presence, 51 or actually acknowledged in their presence? Is it absolutely necessary, under all circumstances that the witnesses should concur in stating that these acts took place? Or is it absolutely necessary, where the witnesses will not swear positively, that the court should pronounce against the validity of the will? I think these are not absolute requisites to the validity of the will.' Consequently, 'where the evidence of attesting witnesses is vague or doubtful or even conflicting the court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with; in other words the court may, on consideration of other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character, or that they were wilfully misleading the court, and accordingly disregard their testimony and pronounce in favour of the will."
(emphasis supplied) This Court held that a greater degree of presumption arises in the case of "holograph wills". The said finding was arrived at as the writing of the will and signature of the testator were admitted; there was also due and proper attestation in accordance with the relevant statutory provisions.52
This Court held that no suspicious circumstances appeared on the face of the instrument and it was found to be moderate and rational.
21. Reliance has also been placed by Mr Priyadarshi on a decision of this Court in Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande [(2003) 8 SCC 537] . In that case itself this Court held: (SCC pp. 541-42, para 5) "5. Before we advert to the submissions made by the learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a will. Section 63 of the Succession Act, 1925 deals with execution of unprivileged wills. It lays down that 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. It further lays down that the will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the will or has seen some other person sign the will, in the presence and on the direction of the testator and each of the witnesses shall sign the will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a will, whether registered or not."
It was furthermore held: (Ramabai case [(2003) 8 SCC 537] , SCC p. 544, para 8) 53 "8. ... In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it has been held that it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind."
The said decision, therefore, is of no assistance to us.
23. In Janki Narayan Bhoir [(2003) 2 SCC 91] while dealing with the question elaborately, this Court held: (SCC pp. 97-99, paras 8-10) "8. To say a will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the 54 presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested 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. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That 55 cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section
63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause 56
(c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will [Ed.: Emphasis in original.] does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
(emphasis supplied) 57 Following the said decision, as also the other decisions in Benga Behera [(2007) 9 SCC 728 :
(2007) 7 Scale 228] , this Court held: (SCC p. 735, para 21) "21. It was also not necessary for the appellants to confront him with his signature in the xerox copy of the will, inasmuch as the same had not appeared in the certified copy. Execution of a will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a will must be attested by two or more witnesses. Execution of a will, however, can only be proved in terms of Section 68 of the Evidence Act. In terms of the said provision, at least one attesting witness has to be examined to prove execution of a will."
2. Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91
10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested 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. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the 58 process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section
63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even 59 though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause
(c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all 60 respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove 61 the due execution of will as required under clause
(c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving 62 due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will.
12. Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the will inasmuch as he did not prove the attestation of the will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by the learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of 63 the respondent and the scribe could be considered under Section 71 of the Evidence Act. Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and the other attesting witness though available has not been examined. When the document is not proved as mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna v. Nathu Vithal [AIR 1949 Bom 266 : 51 Bom LR 245] Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that a will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the will by the second witness, the evidence of the witness called falls short of the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own 64 signatures or denying the signature of the testator or having no recollection as to the execution of the document. This section has no application when one attesting witness has failed to prove the execution of the will and the other attesting witnesses were available who could prove the execution if they were called.
3. Benga Behera v. Braja Kishore Nanda, (2007) 9 SCC 728
40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] ; Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] and Bhagat Ram v. Suresh [(2003) 12 SCC 35].) 65
4. S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274
57. Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The registration of the will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the will is admitted, at least one attesting witness of the will has to be examined to receive the will in evidence. DW 2, who has been examined as the scribe of the will, has given no plausible reasons as to why the will was presented twice before the Sub-Registrar for registration. Nor is it stated by this witness as to why the will was not registered on the first occasion.
5. N. Kamalam v. Ayyasamy, (2001) 7 SCC 503
27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance with the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and we also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependent on the fact situation. The learned Judge as noticed above has himself recorded that there are two significant 66 requirements of the term "attest" viz. that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe's presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise -- this issue unfortunately, we are not in a position to lend concurrence with. The will as produced, records the following at p. 4 thereof: (p. 106 of the paper- book) "WitnessesLTI of Masanae Gowder sd/-
1. T. Subbiya, S/o Veerai Gowder, 25/298, Thomas Street, Coimbatore.
sd/-
2. B. Govindaraju, S/o S. Balagurumurthy Chettiar, 25/250, Rangai Gowder Street, Coimbatore.
67sd/-
Arunachalam"
The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself -- this is again, however, not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.
6. Kalyanaswamy v. Bakthavatsalam, (2021) 16 SCC 543
93. There is one aspect which is pressed before us also, in regard to the same, by the respondents. It is contended that the fact that 68 there is no oral partition between the brothers in 1932, makes it out to be a case where the testator has made a rank incorrect statement in the will which shrouds the will itself as one which is not genuine.
94. In regard to the aspect about incorrect statement in the will, it is to be noticed that making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will. This principle will not be applicable in the facts of this case. Making the statement that there was a partition in 1932 and that the properties were allotted to him, is apparently the understanding of the testator. This issue generated debate in the courts. The view expressed by the testator did not find favour with the courts but that is a far cry from describing it as an outright false statement. As long as it is a part of the will which is made by the testator and he believed in it the finding given by the court in this regard will not advance the case of the respondent.69
7. Karnataka High Court has held as under in R.F.A. No. 488/2008 C/w R.F.A. No. 489/2009, Sr.. Krishna Rao vs. M. J. Vittal,
100. An attesting witness is a person who puts his sign or mark on a deed or Will at the request of its creator, immediately after its execution, for the purpose of proving and identifying that it is executed by the maker of it. In case of a Will, an attesting witness is the one who witnesses the testator executing the Will by signing it. Thus, the execution and attestation of a Will are clearly distinct formalities. The former is the act of the parties; and latter is that of the witnesses.
8. J.T. Surappa v. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust, ILR 2008 Kar 2115
27. 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 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 modem age, prone to consider all human mind to be inherently unsound 70 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.
9. Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh, (2009) 4 SCC 780
11. As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the testator should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;71
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
10. Balathandayutham v. Ezhilarasan, (2010) 5 SCC 770
15. Going by this test, as we must, we find that both the wills, Ext. B-19 and Ext. B-20 are surrounded by suspicious circumstances. The ratio in H. Venkatachala [AIR 1959 SC 443] is that in such a situation the Court "would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts will be reluctant to treat the document as the last will of the testator." (See AIR p. 452, para 20.) Following the aforesaid principle, this Court is constrained to hold that the appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding Exts. B-19 72 and B-20. As such there is no reason for us to find any error in the judgment of the High Court.
11. Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 11.3. Elaborate provisions have been made in Chapter VI of the Succession Act, in Sections 74 to 111, for construction of wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the will; and approach has to be to give effect to a will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will.
However, when the will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last will of the testator.
12. H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be 73 stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
37. Per contra, Sri Shankaralingappa Nagaraj, learned counsel for the contesting respondent No.1 supported the 74 impugned judgment by contending that the learned trial Judge has rightly appreciated the material on record and has rightly dismissed the suit of the plaintiffs.
38. Sri Nagaraj has further argued that the Will has passed through the relevant tests with regard to its validity as is enunciated in the several judgments of the Hon'ble Supreme Court and therefore the grounds urged in the appeal memorandum are hardly sufficient to accept the findings recorded by the learned trial Judge in the impugned judgment and sought for dismissal of the appeal.
39. He also emphasizes that all the documents which were confronted to P.W.1 during his cross-examination and having admitted those documents, they were marked at Ex.D.1 to Ex.D.10.
40. In support of his arguments, he has also filed written arguments and some of the judgments of the Hon'ble Apex 75 Court. The same are culled out hereunder for ready reference.
1. PROOF OF EXECUTION OF EX. D-21 WILL DATED 25/02/1993:-
2. At the outset the Will Ex. D-21 is executed by a highly qualified person who had held high positions in the corporate sectors. Sri. M.W.Gurjar was working in Kirloskar group of companies in a high position and even after his retirement, he was being paid a honorarium till his death by the said company.
3. It is submitted that the whole of the case rests on the proof of the Will dated 25/02/1993 (Ex. D-21). It is pertinent to mention here that the Will Ex. D- 21 is admitted by the plaintiff in para.9 of his cross examination dated 22/10/2005, he states as, "Now I see another original registered Will dated 25/02/1993 executed by my father which is marked as Ex.D- 21. Ex. D-21 bears the signature of my father on each page twice. Dr. S.G. Deshpande, who was a close relative of us and he is one of the witnesses to Ex. D-21. Sri. S.V. Amrute is also a close relative of us who has signed Ex. D-21 as another witness. It is true that Sri. S.V. 76 Amrute was a close confidents of my father and he knew the family affairs of my father. Dr. S.G.Deshpande was a good friend of my father. My relationship with Dr. S.G. Deshpande and Sri. S.V. Amrute were cordial". Thus the plaintiff admits the contents of the Will as well as the signatures of Sri. M.W.Gurjar on all pages of it and also the signatures of the attesting witnesses.
4. This Ex. D-21 was preceded by a draft Will, which is also admitted by Pw-l as Ex. D-22, in which it is written as, "Draft approved" and is signed by Sri. M.W. Gurjar, which writings are made by Sri. M.W. Gurjar, as per the admission of plaintiff/Pw-1 at paragraphs 9 & 10 of the cross examination dated 22/10/2005. At para. 10 of his evidence Pw-1 states "The words 'DRAFT APPROVED' signature of my father and the date bearing 17/02/1993 are marked as Ex. D-22(a)".
5. Even at para. 20 of the cross examination of Pw-1 dated 28/01/2006 he states as, "It is true that after execution of Ex. D18 by my father the next Will executed by him is Ex. D-21 dated 25/02/1993. To the best of my knowledge Ex. D-21 i.e. Will dated 25/02/1993 is the last Will of my father. It is true that after Ex. D-21 77 my father has not executed any other Will which is to the best of my knowledge". Pw-1 in his cross examination dated 28/01/2006 at page 13 para.23 (11th line from the top) states as "It is true that as per the Will Ex. D-21 the entire GURJAR HOUSE should go to my brother i.e. the first defendant".
6. These aspects goes to show that the plaintiff-Pw-1 knew the fact of execution of the Will Ex. D-21 and in view of such a knowledge he has admitted the said will as the last Will of his father and also identified the signatures of M.W.Gurjar on all the pages, which are marked as Ex. D21(a) to (o) and Ex. D-21 (p) & (q).
a) 2006 AIR SCW 2404=2007(1) SCC 546: The court does not sit in appeal over the right or wrong of the testators decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind.
The contents of the Will have to be
appreciated in the context of his
78
circumstances, and not vis-à-vis the rules of intestate succession (para.77,78 & 79).
"Gurdev Kaur v. Kaki, 2006 AIR SCW 2404=(2007) 1 SCC 546
76. The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.
77. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the will have to be appreciated in the context of his circumstances, and not vis-à-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an 79 expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property.
78. If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies."
b) 2010(14) SCC 266:- Mathematical certainty cannot be found in proof of execution of Wills. For proof of execution of Will satisfaction of prudent mind is necessary. (paras.17 to 23) "Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266
17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a will would require the following aspects to be proved:
(1) That the testator has signed or affixed his mark to the will or the will has been signed by some 80 other person in the presence and under the direction of the testator.
(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator.
18. The decisions of this Court in Bhagwan Kaur v. Kartar Kaur [(1994) 5 SCC 135] , Seth Beni Chand v. Kamla Kunwar [(1976) 4 SCC 554] , Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] , Gurdev Kaur v. Kaki [(2007) 1 SCC 546] , Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh [(2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] , Rur Singh v. Bachan Kaur [(2009) 11 SCC 1 : (2009) 4 SCC (Civ) 387] and Anil Kak v. Sharada Raje [(2008) 7 SCC 695] recognise and reiterate the requirements enumerated above to be essential 81 for the proof of execution of an unprivileged will like the one at hand. It is, therefore, not necessary to burden this judgment by a detailed reference of the facts relevant to each one of these pronouncements and the precise contention that was urged and determined in those cases. All that needs to be examined is whether the requirements stipulated in Section 63 and distinctively enumerated above have been satisfied in the instant case by the appellant propounder of the will.
19. Our answer to that question is in the affirmative. The deposition of Shri Vilas Tikhe clearly proves that Panna Lal had executed a will in favour of the appellant, Gopal Swaroop and had signed and affixed his signature in his presence. The trial court and the High Court have concurrently held that the will had been signed by the testator in the presence of the attesting witnesses. First and the foremost requirement prescribed under Section 63 of the Succession Act, 1925 is, therefore, clearly satisfied.
20. Coming then to the second requirement, namely, the placement of the signature of the testator on the will, we find that the signature of the testator appear at the right hand bottom part of the will. The placement of the signature on the document is, therefore, appropriate and clearly 82 suggestive of the fact that the document was intended to be given effect to as a will. We must also mention that no argument was advanced by the learned counsel for the respondent on the requirement of an appropriate placement of the signature of the testator on the document.
21. That brings us to the third requirement, namely, that the will must be attested by two or more witnesses each of whom has seen the testator signing and affixing his mark to the will or has seen some other person signing in the presence and by the direction of the testator. The deposition of Shri Vilas Tikhe in our opinion satisfies this requirement also inasmuch as the witness has in clear and unambiguous terms stated that not only he but Shri Manoj, the other attesting witness to the will, was also present at the time the testator affixed his signature on the will. It is noteworthy that, the above statement has not been questioned in cross-examination nor any suggestion made to the effect that while Shri Vilas Tikhe, the witness may have been present, Manoj was not so present at the time the will was signed by the testator. As a matter of fact, the witness has made a categorical statement that Manoj met the testator in the Court and was taken along and that not only at the time of signing of the will by the testator, but even before the Registrar, Manoj 83 Kumar was present in person. The witness has while answering a question in cross-examination specifically stated that Manoj was present even at the time the witness signed the will in question.
22. On a careful and proper reading of the deposition of Shri Vilas Tikhe, DW 2, we are satisfied that the requirement of attestation of the will by two witnesses each of whom has seen the testator signing or affixing his mark has been satisfied in the present case. So also the fourth requirement that the attesting witnesses sign the will in the presence of the testator stands firmly established. In that view of the matter, the Division Bench of the High Court fell in error in holding that the requirement of Section 63 of the Succession Act had not been satisfied in the instant case.
23. As was observed by this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443] , in the matter of proof of documents as in the case of the proof of wills, it is idle to expect proof with mathematical certainty. The test to be applied always is the test of satisfaction of a prudent mind in such matters. Applying that test to the case at hand we have no manner of doubt that the will executed by Shri Panna Lal, which is a duly registered document, is not surrounded by any suspicious circumstances of any kind and is proved to have been duly and properly executed."
84c) 2010(4) KLJ 548- para 22- in case of a testator, who is literate, worldly wise capable of taking decision, knowing reading and writing and when he was in sound state of mind there would be hardly any doubt as to the execution; in addition to this the said document is also registered before Sub- Registrar where the testator has signed and has marked his thumb impression.
"P.N. Balakrishna v. H.B. Bhavani Shankar, (2010) 4 Kant LJ 548
22. Insofar as the decisions relied by the learned Counsel for the appellants as regard to the examination of one of the attesting witnesses, no doubt, this Court in the case of Virupakshappa Malleshappa has observed that, evidence of the only attesting witness is unworthy of acceptance and also on the ground that when at more than one place there are misstatement of facts. This Court in a case where the attesting witness has denied himself being present at the time of execution of the Will, doubted his evidence and observed that, relying on the evidence of only attesting witness was not justified by the Trial Court, but this is not a case where attesting witness denied his presence at the time of execution of the Will, he has 85 categorically stated that, not only he was present at the time of execution of the Will, but he has seen the testator putting signature and has also stated that he put his signature thereafter and another attesting witness also put his signature after the testator put his signature on the Will. The signatures appearing on the Will also reveal that the document was properly executed. As far as non-examination of another attesting witness or the scribe is concerned, law does not require that another witness should be examined unless it is pointed out that the evidence of attesting witness, who has been examined, is doubtful and not reliable. From the evidence of P.W. 2, no doubt, there are some minor discrepancies, but that will not take away the effect of the evidence as regard to the proof of the execution of the Will. Further, the attesting witness not known to Janardhan and non-examination of Janardhan do not prove any doubt as regard to the execution of the Will, when other circumstances are strong and trustworthy. In case of a testator, who is literate, worldly wise capable of taking decision, knowing reading and writing and when he was in sound state of mind, there would be hardly any doubt as to the execution. In addition to this, the said document is also registered before the Sub-Registrar where the testator has signed and has marked his thumb 86 impression. These circumstances and evidence on record not only clearly prove the execution of the Will according to law, but the same is free Will executed by the testator while he was in sound state of mind. "
7. Hence, the fact of execution of the Will (Ex. D-21) by Sri. M.W. Gurjar is proved.
8. PROOF OF ATTESTATION:- The Will Ex. D-21 is attested by two witnesses viz., Sri. S.G. Deshpande and Sri. S.V. Amrute. Even this aspect of attestation is admitted by Plaintiff/Pw-1 in his cross examination dated 22/10/2005 at para.9 as "Dr. S.G. Deshpande, who was a close relative of us and he is one of the witnesses to Ex. D-21. Sri. S.V.Amrute is also a close relative of us who has signed Ex. D-21 as another witness. It is true that Sri. S.V. Amrute was a close confidents of my father and he knew the family affairs of my father. Dr. S..G.Deshpande was a good friend of my father. My relationship with Dr. S.G. Deshpande and Sri. S.V. Amrute were cordial". This admission of Pw-1 goes to show that Will Ex. D-21 is attested by two witnesses i.e. Dr. S.G. Deshpande and Sri. S.V. Amrute in presence of the executor.
879. Further, Sri. S.V. Amrute, the attesting witness to the Will Ex. D-21, has been examined as Dw-2 who has spoken about the fact of execution of Will Ex. D-21 by Sri, M.W. Gurjar, and his signing the same, in presence of himself, Dr. S.G. Deshpande and an advocate on 25/02/1993. In the examination in chief of Dw-2 at page -2 says as "Sri. M.W. Gurjar has signed the said will on all the pages in my presence and in the presence of Dr. S.G. Deshpande and an advocate on 25/02/1993. I submit that I am one of the attesting witness to the said Will dated 25/02/1993 being present at the time of execution of the same". Since the attesting witness has spoken regarding the signing of the Will by M.W. Gurjar in presence of the witnesses and advocate, Dw-2 being one of the attesting witness has signed the said Will as an attesting witness, he being present at the time of execution of the same; proves the fact of fulfilling the requirements of law as to due attestation of the Will. He has also spoken about the mental and physical health of Sri. M.W. Gurjar as normal at that time. On a perusal of Ex. D-21, in the last page it is stated as "Signed by the said Madhav Waman Gurjar as his last Will and testament in our presence, all being present at the same 88 time. Thereafter at his request and in his presence we subscribed our respective name and signatures as attesting witnesses all being also present at the same time". It is to be seen that there is no cross examination of Dw-2 by the plaintiffs on the above aspects. In view of the above, it is proved that the Will Ex. D-21 is executed and attested in accordance with law.
(a) AIR 2013 SC 2088 - Attestor examined not specific as to other attestor signing in presence of testator and testator executing Will in his presence - attestor examined however specific that other attesting witness was present at the time of writing of Will -Will proved.
"M.B. Ramesh v. K.M. Veeraje Urs, AIR 2013SCC 2088 = (2013) 7 SCC 490
21. The issue of validity of the will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW 2 that he had seen the other attesting witness sign the will in the presence of the testatrix, but he has stated that the other witness had also signed the document. He has proved his signature, and on the 89 top of it he has also stated in the cross- examination that the other witness (Mr Mallaraje Urs), Smt Nagammani, himself and one Sampat Iyanger and the writer of the will were all present while writing the will on 24-10-1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement along with the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act.
22. While drawing the appropriate inference in a matter like this, a court cannot disregard the evidence on the attendant circumstances brought on record. In this context, we may profitably refer to the observations of a Division Bench of the Assam High Court in Mahaluxmi Bank Ltd. v. Kamakhyalal Goenka [AIR 1958 Ass 56] , which was a case concerning the claim of the appellant Bank for certain amounts based on the execution of a mortgage deed. The execution thereof was being disputed by the respondents, amongst other pleas, by contending that the same was by a purdahnashin lady, and the same was not done in the presence of witnesses. Though the evidence of the plaintiff was not so categorical, looking to the totality of the evidence on record, 90 the Court held that the execution of the mortgage had been duly proved. While arriving at that inference, the Division Bench observed : (AIR p.
62, para 11) "11. ... It was, therefore, incumbent on the plaintiff to prove its execution and attestation according to law. It must be conceded that the witnesses required to prove attestation has (sic) not categorically stated that he and the other attesting witnesses put their signatures (after having seen the execution of the document) in the presence of the executants. Nevertheless, the fact that they actually did so can be easily gathered from the circumstances disclosed in the evidence. It appears that the execution and registration of the document all took place at about the same time in the house of the defendants. The witnesses not only saw the executants put their signatures on the document, but that they also saw the document being explained to the lady by the husband as also by the registering officer.
They also saw the executants admit receipt of the consideration, which was paid in their presence. As all this happened at the same time, it can be legitimately inferred that the witnesses also put their signatures in the presence of the executants after having seen them signing the instrument. ...
91... There is no suggestion here that the execution and attestation was not done at the same sitting. In fact, the definite evidence here is that the execution and registration took place at the same time. It is, therefore, almost certain that the witnesses must have signed the document in the presence of the executants."
25. In view of the above factual and legal position, we do hold that the respondent-plaintiffs had proved that Smt Nagammanni had duly executed a will on 24-10-1943 in favour of the plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The findings of the trial court as well as the first appellate court on Issue 2 were clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the trial and appellate court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. Suit No. 32 of 1975 filed by the respondents in the Court of the Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with 92 their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the property concerned, with future mesne profits. In the facts of the present case, however, we do not order any costs."
(b) 2012 AIR SCW 2347- Both attesting witness need not sign Will siimulatenously - fact that one of the attesting witness stated that he did not know when other attesting witness came-not ground to hold that Will was not duly attested.
"Mahesh Kumar v. Vinod Kumar, 2012 AIR SCW 2347 = (2012) 4 SCC 387
27. The issue which remains to be examined is whether the High Court was justified in coming to the conclusion that the execution of the will dated 10-2-1992 was shrouded with suspicion and the appellant failed to dispel the suspicion? At the outset, we deem it necessary to observe that the learned Single Judge misread the statement of Sobhag Chand (DW 3) and recorded something which does not appear in his statement. While Sobhag Chand categorically stated that he had signed as the witness after Shri Harishankar had signed the will, the portion of his statement 93 extracted in the impugned judgment gives an impression that the witnesses had signed even before the executant had signed the will. Another patent error committed by the learned Single Judge is that he decided the issue relating to validity of the will by assuming that both the attesting witnesses were required to append their signatures simultaneously. Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient. Not only this, while recording an adverse finding on this issue, the learned Single Judge omitted to consider the categorical statements made by DW 3 and DW 4 that the testator had read out and signed the will in their presence and thereafter they had appended their signatures."
10.REGARDING DISINHERITANCE OF THE PLAINTIFF IN THE WILL Ex. D-21:- It is submitted that the very conduct of the plaintiff towards his father is the reason for M.W. Gurjar to exclude the plaintiff from inheriting the GURJAR HOUSE, though he was given a share in the jewelries. This has been explained by Sri. M.W. Gurjar in his Will Ex. D- 21 and also in the draft Will Ex. D-22; and further it is evident from the evidence of Pw-1 and Dw-2. At page 2 of Ex. D-
9421 (16th line from the top) the following recitals need consideration, "I am living happily with the family of my son Mohan Madhav Gurjar since 1982. The entire family of my son Mohan Madhav Gurjar consisting of my son Mohan Madhav Gurjar, his wife Smt. Nanditha M. Gurjar and their sons Master Adithya and Master Siddarth are very obedient and serve me to my satisfaction. My unmarried daughter Shylaja Madhav Gurjar is also happily living with my son Mohan Madhav Gurjar and his family". At page 3 of Ex. D-21 (13th line from the top) the following recitals are forthcoming, "My son Atul Madhav Gurjar with my help and financial assistance acquired an independent property a vacant site situated at Rajmahal Vilas Extension, Bangalore, wherein he has constructed a house and let out for rent. Atul Madhav Gurjar has an independent income and he is possessed of immovable property of his own. I cannot live comfortably and happily with my son Atul Madhav Gurjar. My daughter Shylaja Madhav Gurjar and I am being looked after well by my son Mohan Madhav Gurjar and his family. Mohan Madhav Gurjar and his family have always looked after me and my daughter with utmost care and affection. My son Mohan Madhav Gurjar has also spent lot of 95 money on improvement and maintenance of the main building and construction of servant quarters, out of his own funds. I am of the desire that my son Mohan Madhav Gurjar alone deserves to receive from me the immovable property namely the 'Gurjar House', bearing No.5, 10th Main, 3rd Block, Jayanagar, Bangalore". At page 4 of Ex. D-21 the last line and at page 5 it is stated as, "It is my wish and desire that after my death all the movables, furniture, carpets, utensils and other articles found in GURJAR HOUSE shall entirely belong to my son Mohan Madhav Gurjar". At page 5 of Ex. D-21 (9th line from the bottom) the recitals are, "My son Atul Madhav Gurjar shall not be entitled for any portion of my house GURJAR HOUSE bearing No.5, 10th Main, 3rd Block, Jayanagar, Bangalore, either on the ground floor or on the first floor. My son Atul Madhav Gurjar's right shall be restricted to his continuing as a tenant in the first floor in an area of 1006 sq.ft".
17. Even Dw-2 the attesting witness in his cross examination dated 22/08/2009 at page No.3 (10th line from the bottom), has stated as, "The relationship between M.W. Gurjar and plaintiff No.1 was not good since 1977 because it was told by M.W. Gurjar to me. M.W. Gurjar was 96 not at all visiting the family of plaintiff No.1. When Atul Gurjar, plaintiff NO.1 came back from Malaysia from then onwards the relationship between himself and M.W. Gurjar was not good". Again at page 5 (2nd line from the bottom) he says as "M.W. Gurjar used to discuss with me with regard to the execution of the Will in favour of defendant No.1 Mohan Gurjar. The Atul Gurjar already had site at R.M.V. Extension, and for that M.W. Gurjar has given money of Rs.35,000/- and therefore, the M.W. Gurjar had also paid Rs.2,50,000/- to the plaintiff No.1, Atul Gurjar, for the construction of building in the RMV Extension, and therefore Gurjar decided to execute the Will in favour of defendant No.1". This fact was not even denied by the plaintiff during his cross examination.
18.The plaintiff also admits the fact of he not visiting the ground floor of the Gurjar House from 1984-85. In his cross examination dated 11/11/2000 para. 14 (6th line from the top) he states as, "when I shifted to the first floor of the Gurjar House in the year 1982, my father, my brother Sri. Mohan M. Gurjar, his wife, my sister Smt Shyla Gurjar continued to live in the ground floor and a part of the first floor which was an 97 old construction". Again at page. 7 Para. 15 (5th line from the top) of his cross examination he states as "It is true to suggest I was not visiting the ground floor of Gurjar House after the years 1984-85. Again at page. 9 of his cross examination dated 16/12/2005 at para. 18 (7th line from the top) he states as, "It is true after 1981 my brother, sister, my father and later my brother's family were living together in the ground floor and a portion of the first floor of GURJAR HOUSE till the death of my father". Further at page. 10, para.19 (7th lien from the top) of his cross examination he says, "It is true that even now my disabled sister continues her residence with my younger brother, the first defendant. Even now I do not visit the house of my younger brother". In continuance of the above evidence, Pw-1 at page 25 of his cross examination dated 20/02/2010 (3rd line from the top) has stated as, "It is true that my father and my brother-first defendant lived together throughout the life of my father. It is true that from the year 1972 I am living separately from my father".
19. It is submitted that the above aspects goes to show that the plaintiff has not taken care of his father and the father has also expressed in Ex. D-
9821 that he cannot live comfortably and happily with the plaintiff. Further, the plaintiff has been financially assisted by the father in acquiring a site in his name at R.M.V. Extension by paying Rs.35,000/- then, and Dw-2 has further stated that the plaintiff was paid to the tune of Rs.2,50,000/- for construction of a house at RM.V. Extension (these fact are not disputed by plaintiff). In view of these, it is submitted that Sri. M.W. Gurjar has justifiably excluded the plaintiff from inheriting the suit schedule property.
20. As regarding the exclusion of the daughter Smt. Shylaja M. Gurjar, since she was a slow learner, remained as a spinster and was living continuously with the defendant No.1 under his care, Sri. M.W. Gurjar, has given a right of residence to her in Gurjar House and also had formed a Trust for providing maintenance to her. As such the daughter Smt. Shylaja M.Gurjar was partly excluded in the Will Ex. D-21.
21.It is evident from the evidence of plaintiff No.1 that he has not taken care of his father and has been living away from him throughout, after his marriage in the year 1972. Inspite of all these, the father has financially assisted him to acquire a property at RM.V. Extension, Bangalore. These 99 factors were also the reasons for Sri. M.W. Gurjar to exclude plaintiff in the Will Ex. D-21. Since, the first defendant has done all the duties which a son is expected of towards his father, Sri. M.W. Gurjar has executed the Will Ex. D-21 excluding the plaintiffs and in favour of 1st defendant.
22. ILR 2004 KAR 440 = 2003(8) SCC 537- para.8 a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will.
"Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, ILR 2004 Kar 440 = (2003) 8 SCC 537
8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have 100 either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664 : AIR 1995 SC 1852] it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291 : AIR 1972 SC 2492] it has been held that if the propounder succeeds in removing the suspicious circumstance, the court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part the near relations. In Rabindra Nath Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of 101 succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed."
23. 2006 AIR SCW 2404 - Nature of bequest-relevant only for purpose of deciding its authenticity court not to sit in appeal over testators decision-Will - due execution proved-holding it as non authentic on ground of dis inheritance of daughter - not proper.
(Gurdev Kaur v. Kaki, 2006 AIR SCW
2404=(2007) 1 SCC 546 )
24.REGRDING THE SOUND DISPOSING STATE OF MIND OF THE TESTATOR while executing EX. D- 21: The plaintiff in his pleading alleges that Sri. M.W.Gurjar became abnormal by the end of 1991 and thereafter his mental and physical condition deteriorated and also pleads about the alleged opinions of Dr. Maiya and Dr. Ramachandra Murthy about Sri. M.W.Gurjar suffering from senile dementia (para.6 of the plaint) but in his evidence the same are proved to be false.
10225. Pw-1 in his cross examination dated 28/01/2006 at para. 20 (1¹ line onwards) he says, "My father was keeping normal health till his death, but he had diabetes and hypertension. Diabetes and hypertension has not affected his day to day activities. It is true that when Ex. D-16 (lease deed dated 30/12/92 in favour of plaintiff) was executed by my father, he was keeping a sound disposing state of mind. It is true that my wife Dr. Sudha A. Gurjar is an attesting witness to Ex.D-16".
26. It is submitted that in order to show that Sri. M.W. Gurjar was in a sound state of mind throughout his life the evidence of Pw-1 & the admitted documents pertaining to Sri. M.W. Gurjar requires consideration. At page 24 of the cross examination of Pw-1 dated 20/02/2010 (4th line from the bottom) he states as, "It may be true that my father though a diabetic patient he entered into so many transaction till his death. It is true that even in the year 1992 while executing Ex. D-16 my father was a diabetic".
27. In this regard the further evidence of Pw-1 admitting the writings of Sri. M.W. Gurjar play a vital role in proof of his sound mental condition.
103Pw-1 in his cross examination dated 22/10/05 at para. 4 admits as, "Now I see the copies of the letters written by my father to various persons which are marked as Ex.D-3 to D-10". These letters are written by Sri. M.W.Gurjar right from the year 1991 till 1994; which falsify the plea of senile dementia pleaded by the plaintiff.
28. Pw-1 has also admitted the bank challans under which Sri. M.W. Gurjar had deposited various amounts in Bank of Baroda right from the year 1994 to 1996 which are in his handwriting & signed by him as per Ex. D-12 to D-15 and D- 36 to D-38. The plaintiff admits these documents in his cross examination at para.7 on 22/10/05 and at page.21 dated 08/02/2010 (last but one para); which proves his sound mind. Further at page 5 of the cross examination of Pw-1 dated 10/07/2007 (7th line from bottom) he speaks as, "It is true that after the operation of the 2nd eye in the year April 1992, my father was managing his day to day affairs till his death, with the help of vision of one eye. The witness volunteers that, only for medication purpose he was depending on us". Again at page 7 dated 10/07/07 Pw-1 says as, "My father had a good sense of dressing and the same sense of dressing was continued by him till the year 104 1994- 95". A photograph Ex. D-39 taken on 27/01/96 which is admitted by Pw-1 at page 21 dated 08/02/10 (last para) shows the dressing sense of Sri. M.W. Gurjar even in the year 1996; which testifies regarding the sound state of mind of him.
29. Even as to the daily habits of Sri. M.W. Gurjar Pw- 1 has spoken about it at page 14 of his cross examination dated 11/12/09 (6th line from the top) he says as, "It is true that my father was regular visitor either of the clubs daily, it is true that my father was looking after his expenses of the clubs out of his own funds. Accordingly, my father was paying all the dues to the above referred clubs by a/c payee cheque and sometimes by cash also". Again at page 19 dated 08/02/2010 (1" lien from the top) Pw-1 says as, "It might be that my father is a systematic man & that he was maintaining all the records pertaining to him even he did not lost small chit".
30. The plaintiff has examined three doctors as Pw-2 to Pw-4. It is submitted that Pw-2 is an eye specialist & Pw-3 is specialist in internal medicine and cardiology, who have not treated Sri. M.W.Gurjar for the alleged Senile Dementia having 105 regard to their specialization in different fields of medicine, other than psychiatry. Hence, the evidence of Pw-2 & Pw-3 is of no assistance to the plaintiff.
31. The only evidence of a psychiatrist is that of Pw-4 who is a colleague of Plaintiff's sister-in-law by name Dr. Latha. Since the plaintiff's wife is a doctor by name Dr. Sudha, she has used her sister to influence Pw-4 to help her. Pw-4 in his cross examination at para. he says "I have examined Madhav Waman Gurjar (M.W.Gurjar) only once" and further in para 3 he says "with the assistance of an aid M.W. Gurjar could have executed transactions". Again in para.4 he says "The witness is now shown Ex.D-21 & 22. By looking at them it is not possible for me to state whether M.W.Gurjar was capable of making a Will even with the assistance of an advocate. The reason being that I had not tested him for testamentary capacity at any time. Further at para.5 he admits as "late MW.Gurjar was brought to me by Dr. Sudha wife of 1st plaintiff Sri. Atul M.Gurjar. Dr. Sudha's sister by name Dr. Latha was my colleague for about 8 years. It was she who requested me to help her sister". Even this evidence of Pw-4 will not aid the plaintiff in any way since pw-4 has examined M.W. 106 Gurjar only once on 24/06/92 and he has been requested to help plaintiff's wife as per his own version. At this juncture it is worthwhile to refer to the cross examination of Pw-1 dated 10/07/2007 at page 5 (2nd line from the top) he speaks as, "After 24/06/1992 there was no occasion for my father to visit the psychiatrist. It is true that after 24/06/92 my father was never treated by psychiatrist". The above aspects proves the fact that Sri. M.W. Gurjar was in a sound disposing state of mind.
32. 2008 (1) AIR Kar R 594 - Testator suffered paralytic stroke - by itself not sufficient it is to be further established that due to such ill health he was incapacitated mentally - no such attempt made by plaintiff - non disclosure of reason to exclude other grand children - does not amount to suspicious circumstance.
"Rukmini Bai v. Umabai, (2008) 1 AIR Kant R 594
13. One of the primary factors which requires to be noticed is that the plaintiff, at the first instance, had not questioned the Will in the suit, it is only on the filing of the written statement and the contention being urged by the defendants, the plaintiff thought it fit to amend the plaint to state that the Will had been obtained by fraud.107
Except for stating that defendant 2 has created false and bogus Will from the said late Ramachandra Kawatekar, there is no other pleading to contend, in what manner the said document is either false or bogus. Though it is attempted to be explained by the learned Counsel that the Will was known only during proceedings of the suit, the P.W. 1 in her cross-examination has admitted knowledge prior to filing the suit. No doubt, the law is well-settled that the propounder of the Will would have to remove the suspicion if any with regard to the Will. In the instant case, the Will is a registered document of the year 1968 and the plaintiff in fact should have pleaded the suspicious circumstances if any under which the Will has been executed and only on raising such suspicion, the defendants would have been in a position to remove the suspicion if any. However, while tendering evidence, the plaintiff who was examined as P.W. 1 has put forth the case that the testator-Ramachandra Kawatekar had suffered paralytic stroke between the years 1963 and 1968 and was bedridden. The attempt of the plaintiff is to contend that therefore the Will cannot be said to have been executed by late Ramachandra Kawatekar out of his free will since Smt. Amba Bai who was in control of late Ramachandra Kawatekar has got the same executed as per her desire. The 108 further evidence and the cross-examination of P.W. 1 is voluminous. The essence of it is to that extent wherein surrounding circumstances have been stated with regard to P.W. 1 being away and Rukmini Bai i.e., the second defendant while staying with late Ramachandra Kawatekar has taken advantage of the situation and got the Will, sale deed and gift deed executed. However in an attempt to establish the main contention regarding illness of late Ramachandra Kawatekar, the witnesses namely Yellappa-P.W. 2, Narasing Manappa Rasade-P.W. 3, Vasudev Mane-P.W. 5 and Arjun Subrao Kadam-P.W. 6 have been examined. The said persons claim to be known to the family and that they were aware that late Ramachandra Kawatekar had suffered paralytic strokes during the year 1962 to 1968. A perusal of their evidence no doubt would indicate that they have stated regarding their familiarity with the family and the fact that late Ramachandra Kawatekar had suffered paralytic stroke. In fact P.W. 5 has stated that after suffering the third attack, he was not in a position to get up or speak. While stating with regard to illness, it has also been stated that Ramachandra Kawatekar was treated by Dr. Mummigatti, but the said doctor is dead. Therefore, his son Dr. S.G. Mummigatti was examined as P.W. 7 to state that his father was 109 treating Ramachandra Kawatekar and thereafter he had also treated him. However, in the cross- examination, the said doctor was unable to give any details with regard to the treatment rendered nor the records maintained in that regard. The evidence tendered by the said witnesses would not be of much importance, in the present case of this nature, since there has been certain inconsistencies in the evidence wherein the witnesses more particularly, P.Ws. 2 and 3 have been divergent in their evidence regarding the portion of the body to which paralytic stroke was suffered when one says it is to the right portion, the other says that it is to the left portion. Notwithstanding the fact that the said witnesses have not been able to establish in unequivocal terms that late Ramachandra Kawatekar had suffered paralytic stroke during 1963-68 and even if the contention of the learned Counsel for the plaintiff is considered wherein he contends that the first defendant herself has admitted in her evidence that late Ramachandra Kawatekar had suffered paralytic stroke, and even if it is a fact, I am of the view that the same would not be conclusive insofar as the question which is before us. Even assuming for a moment that late Ramachandra Kawatekar had suffered paralytic stroke during periods 1963 to 1968 what requires to be further established is that due to such illness, 110 he was incapacitated mentally and was not in a position to comprehend what he was doing and was not able to take any decisions with regard to any matter. In the case on hand, there is no such attempt made by the plaintiff to establish this fact that late Ramachandra Kawatekar was in such a state that he was unable to decide anything. This is more so because it is contended by the plaintiff that Smt. Ambabai was instrumental in getting the deeds executed. At the outset, Smt. Ambabai being the wife of late Ramachandra Kawatekar was the step grandmother of the grandchildren of late Ramachandra Kawatekar and a specific reason to prefer anyone with an ill-motive was also required to be brought out convincingly. Contrary to this, as against the contention put forth by the plaintiff, with regard to the illness of the testator, apart from the fact that the Will dated 23-11-1968 is a registered document executed and registered before the Sub-Registrar, the defendants have examined Sri Mallikarjun Gangappa Nadakatti-D.W. 2 and Sri Shankarappa Channaveerappa Uppin- D.W. 5 to establish that even during the periods 1963 to 1968 and thereafter, the testator was personally looking after the agricultural activities and was supplying the agricultural products to their shops. The said persons are business men who deal in agricultural products of buying and selling the 111 same. While receiving the goods and when the payments are made appropriate receipts are maintained. The said receipts which are said to have been maintained at an undisputed point of time during the said course of business have been exhibited at Exs. D.10 to D.55. The receipts date upto the year 1970. In the said receipts late Ramachandra Kawatekar has signed in acknowledgement of the transaction between the traders and himself which would indicate that he was in a position to carry out his activities without any hindrance. Therefore, if he could act on his own during the said period, there is nothing to assume that as on the date of execution and registration of the Will, he was not able to comprehend what he was doing. Therefore, the plaintiff had not established that the Will had been brought about in the manner alleged by her. On the other hand, the propounder of the Will viz., the second and 5th defendants through the evidence of the first defendant who is also a signatory to the Will have established that the Will had been executed by late Ramachandra Kawatekar knowing the contents of the same.
14. The next aspect of the matter is as to whether the plaintiff has raised any other suspicious circumstance regarding the Will and if so; whether the propounder of the Will has 112 established the Will keeping in view the well-settled principles of law on this aspect. Further as to whether the Court below has appreciated it in its correct perspective. The other suspicious circumstances raised on behalf of the plaintiff is that the Will does not disclose the reason for excluding the other grandchildren; the Will is dated 23-11-1968, whereas late Ramachandra Kawatekar died on 24-5-1987 and as such the circumstance to execute the Will so early in life has not been explained; the attestors to the Will have not been examined and the sons examined have only identified the signature, and as such the same does not amount to proof of the contents. The Court below has taken note of the contentions put forth on behalf of the plaintiff and by the defendants. Insofar as the non-disclosure of the reasons in Ex. D.1 to exclude the other grandchildren the Court below on noticing the decision rendered by the Hon'ble Supreme Court in Smt. Sushila Devi v. Pandit Krishna Kumar Missir [AIR 1971 SC 2236 : (1971) 3 SCC 146.] and Rabindra Nath Mukherjee v. Panchanan Banerjee (dead) by L.Rs. [AIR 1995 SC 1684 : (1995) 4 SCC 459.] has rightly come to the conclusion that the same does not amount to a suspicious circumstance. Though this alone would have been sufficient to uphold the finding of the Court below on this aspect, 113 considering that the plaintiff has filed cross- objection, I deem it necessary to notice the decisions rendered by the Hon'ble Supreme Court in the case of Savithri v. Karthyayani Amma [(2007) 11 SCC 621 : 2007 AIR SCW 6787.] , wherein the Hon'ble Supreme Court has not only held that depriving a share to the natural heir is not a suspicious circumstance but the background facts should also be taken into consideration. In the instant case, the plaintiff as well as the defendants 2 to 7 are all the grandchildren of late Ramachandra Kawatekar bom through his first wife's daughter Smt. Krishnabai. To Smt. Ambabai, i.e., the first defendant, all of them are the step grandchildren and she did not have any issues of her own. Even though an allegation has been made against Smt. Ambabai that she was instrumental in getting the Will executed, she has not benefited herself in any manner, but the beneficiaries are the second and fifth defendants who were also the step grandchildren like the others and as already noticed no specific ill-motive is alleged. Hence, if Ramachandra Kawatekar and Ambabai as grandparents have chosen only two of their grandchildren, they would have had their own reasons even though the same has not been disclosed in the document. This aspect no doubt could have been looked at from a different angle if 114 the Will was not a registered document and if the contention that it is a created document by the beneficiaries was put forward and if it was anywhere nearer to the date of death of the testator. In the instant case, the beneficiaries were minors on the date of execution of the Will and it is not even the case that they have taken part in the execution of Will. If the testator who is the grandfather in his wisdom had thought it fit that the properties indicated in the Will should be enjoyed only by two grandchildren after the demise of his wife Ambabai, this Court cannot sit in judgment over the same as held by the Hon'ble Supreme Court in the case of Gurdev Kaur v. Kaki [AIR 2006 SC 1975 : (2007) 1 SCC 546 : 2006 AIR SCW 2404.] . The duty of the Court would only be to test the authenticity of the Will in terms of Section 63 of the Indian Succession Act. Any and every circumstance is not a suspicious circumstance. 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. A Will is normally executed to interrupt the normal succession so that the testator would prefer some and exclude others and as such it cannot be said that it is unnatural or suspicious. Therefore, the authenticity of the document would have to be considered, In this regard, the circumstances 115 indicated in the case of Savithri by the Hon'ble Supreme Court would be available to the instant case. The Will is admittedly registered and in the case on hand, the testator has lived for 19 years after the execution and registration of the Will and as already noticed, the Exhibit 'D' series would indicate that the testator was carrying out his activities without hindrance and as such he had all the time in the world if he had any other intention. Hence, the authenticity of the Will to that extent cannot be doubted from the surrounding circumstance of this case.
15. The next aspect would be regarding the examination of the attesting witnesses. It cannot be disputed that both the attesting witnesses had expired, since the same is established by Exs. D.2 and D.3 being the death certificates. Hence, the nature of proof would be as contemplated under Section 69 of the Indian Evidence Act. In fact, in the instant case the sons of the deceased attesting witnesses have been examined as D.Ws. 3 and 4, who have identified the handwriting and signature of their father and they are the natural persons to identify the same. The proof of the contents of the documents by the said witnesses is not a requirement of law and as such, the Court below has erred on this aspect. One other aspect is that 116 one of the attesting witness namely Rudrappa Basavanthappa Menasinkai is also a witness to the sale deed dated 18-4-1959 whereunder the testator had purchased the property and the same is marked as Ex. D.5(a). This would indicate that he was a person who was known to the testator and therefore a natural attesting witness. That apart, even though the first defendant Smt. Ambabai has joined the Will, since she is not the owner of the properties, she would not be the testator and if she is considered as a witness, she would be the most competent witness not only for proving the signature of the testator, but also to the circumstances of the Will. The first defendant was examined as D.W. 1 and has stated in detail with regard to the family details. The signature on the Will was identified as D.1(a) and (b) and she has stated with regard to the Will. She has also identified the signature of her husband of Exs. D.6, D.7 and D.8 which are lease deeds which are not only similar but documents subsequent to the period of the illness alleged by the defendants. Though, she has been cross-examined at length, there is nothing to discredit the evidence whereby she has identified and proved the signature of the testator."117
33. REGARDING SUSPICIOUS CIRCUMSTANCES IF ANY:- The above stated submissions clearly establishes that there are no suspicious circumstances whatsoever surrounding the execution of the Will. The argument of the appellant that the scribe of Ex. D-21 being an advocate was representing the defendant in the trial court for some time is a suspicious circumstance does not hold any water, since there is no such bar for so doing, since the advocate who has drafted Ex. D21 has done his work at the behest of Sri. M.W. Gurjar, his appearance as a counsel for the defendant in the trial court will be of no consequence to doubt his bonafides and the genuineness of the Will Ex. D-21.
34. AIR 2006 SC 370-Para.13 - simply because he has signed some of the pages twice was not a good ground to hold that the Will was suspicious.
"Hazara Bradri v. Lokesh Datta Multani,AIR 2006 SCC 370 = (2005) 13 SCC 278
13. Learned Single Judge has discarded the Will on the ground that the same was surrounded by suspicious circumstances. The Division Bench after an elaborate discussion has discarded all the 118 suspicious circumstances. The Division Bench came to the conclusion that the Will was natural and was executed by Sardar Sujan Singh out of love and affection for the respondent whom he treated like his son. It was further held that he did not deprive his wife of the property. He left his property to his wife for her lifetime without any power to alienate the same in any manner and after her death the property was to go to the respondent as absolute owner. Smt Ram Kaur had attested the Will. It was found that Pt. Thakur Datta Multani, father of the respondent was a very close friend of Sardar Sujan Singh which was evident from the fact that he had appointed him as the executant of his Will. That Sardar Sujan Singh had executed the Will out of his own volition in a healthy state of mind and had appended his signature on each page of the Will. Simply because he had signed some of the pages twice was not a good ground to hold that the Will was suspicious."
35. COMPLIANCE OF LAW:- The Will Ex. D-21 has been executed in compliance of Section 63 of Indian Succession Act, 1925, and Section 68 of Indian Evidence Act, 1872. Regarding the compliance of Section. 63 of Indian Succession Act, 1925, the Will has been executed by Sri. M.W. Gurjar in presence of the two witnesses contained 119 therein who have seen him signing and thereafter have attested the said document as attesting witnesses, which fact is forthcoming from the documents Ex. D-21 itself and also the evidence of Dw-2. Inspite of the admission of Ex. D-21 by plaintiff in toto, Dw-2 is examined to speak about the aspect of execution and attestation of the Will Ex. D-21, which he has successfully done, which complies with Section 68 of Indian Evidence Act, 1872.
It is submitted that Dw-2, the attesting witness has spoken about execution of Will Ex. D-21 dated 25/02/93 & the signing of the same on all pages by M.W. Gurjar in presence of himself, Dr. S.G. Deshpande & an advocate; infers that all the four persons were physically present at the time of execution of the Will and the attestors have signed the same in presence of Sri. M.W. Gurjar. This statement itself would prove the fact of the required attestation by the other witness in presence of Sri.M.W.Gurjar. This fact is further fortified from the recitals of the Will itself found above the signatures of the attestors. It is to be 120 noticed that Dw-2 has not at all been cross examined by the plaintiff regarding the execution and attestation of the Will.
Furthermore, the law is settled to the effect that both the attesting witnesses need not sign simultaneously as held by the Hon'ble Apex Court in AIR 2013 SC 2088 at para.21 to 23 and also in 2012 AIR SCW 2347. The totality of the circumstances stated above will dispel the contentions of the appellant that the attestation is improper, though the same is done in accordance with law."
41. In view of the rival contentions of the parties, this Court meticulously perused the material on record. On such perusal of the material on record following points would arise for consideration:
1) Whether the appellants have made out a case that late M.W. Gurjar died intestate and his estate mentioned in plaint schedule 'A' to 'C' are available for partition?121
2) Whether defendant Nos.1 and 5 have successfully established that Sri M.W. Gurjar executed a Will on 06.11.1992 and 23.02.1993 bequeathing the estate of Sri M.W. Gurajar in favour of first defendant and the said Will was duly executed?
3) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
4) What order?
Regarding point Nos.1 to 3:
42. In the instant case, there is no dispute that schedule properties were owned by Sri M.W. Gurjar out of the self earnings. Sri M.W. Gurjar was employed by M/s Kirloskar Group of Companies and he retired in the year 1973. Post retirement he was been paid honorarium of Rs.2500/- per month by his employer till June 1995.
43. According to plaintiffs, Sri M.W. Gurjar died intestate as per their pleadings. However, in the very plaint itself, they mentioned that M.W. Gurjar has executed a Will which they came to know soon after his death when first 122 plaintiff has sent his relatives for seeking division of the properties.
44. It is the case of the plaintiffs that the said Will is not executed properly by M.W. Gurjar and the same is concocted by the first defendant with active collusion of the attesting witnesses and therefore, the Court has to ignore the Will and decree the suit by granting 1/3rd share in the suit properties for the plaintiffs.
45. Oral evidence placed on record on behalf of the plaintiff is in the form of examination-in-chief of P.W.1 who is the first plaintiff is nothing but the replica of plaint averments. In his cross-examination, it is admitted by him that he worked in Indo Malaysia Engineering Company in Malaysia for the period of 1972 to 1977. When he returned to India in the year 1977, he continued to work in Kirloskar Group of Companies. He admits that first defendant on completion of his B.Com decree in the year 1972, also joined Kirloskar Group of Companies with the influence of M.W. Gurjar and worked till 1982. It is 123 admitted by him that till the year 1981, first plaintiff, first defendant and M.W. Gurjar all lived in suit schedule 'A' property. On confrontation, he admits that the signature of M.W. Gurjar in Exs.D.1 and D.2 and so also copies of letters written by Sri M.W. Gurjar to various persons which were marked at Exs.D.1 to D.10.
46. Ex.D.1 is the letter written by M.W. Gurjar to first plaintiff dated 16.10.1973 wherein there is mention that there was a query by the Income Tax Officer as to how did first plaintiff got Rs.35,000/-.
47. Ex.D.2 is yet another letter written by M.W. Gurjar dated 07.05.1973 mentioning about Ex.D.1.
48. Other letters are written by M.W. Gurajar to few other persons and few other concerns.
49. P.W.1 has admitted the signatures of Sri M.W. Gurjar in all those correspondence.
12450. The bank counter foils are marked through D.W.1 as Exs.D.12 to D.15 to establish that bank challens were also filled up by M.W. Gurjar as dated as 09.09.1995.
51. Certified copy of the lease deed - Ex.D.16 is in respect of first floor portion which was registered in the office of Sub-Registrar which is in occupation of the first plaintiff.
52. Ex.D.17 is the Will dated 25.05.1984. Ex.D.18 is yet another Will dated 06.11.1992. Ex.D.21 is the last Will which is registered in the office of the Sub-Registrar dated 25.02.1993.
53. In the cross-examination of P.W.1 these documents were confronted and on the admission of P.W.1, they were got marked. It is pertinent to note that all the 'D' series documents are got exhibited in the cross-examination of P.W.1.
12554. P.W.1 further admits that Dr. S.G. Deshpande who was close relative of the family and Sri S.V.Amurute, another close relative have attested Ex.D.21.
55. He also admits that draft of Ex.D.21 is marked at Ex.D.22. He admits that signature of M.W. Gurjar beneath the words 'draft approved' in Ex.D.22.
56. He also admits that he had taken his father for breaking open the lockers kept in the Canara Bank. He also admits that after breaking open the locker, the entire gold jewellery was brought to his house. In the next breath he has stated that the entire gold jewellery was given to his hands.
57. He admits that between the period 1990 to 1994, his mothers jewellery was in his custody. He admits that in the year 1994 as per the directions of M.W. Gurjar, he shared the jewellery with first and fourth defendants.
58. Further he admits that creation of trust for providing financial assistance for fourth defendant. He has answered 126 that he does not have any idea when the trust stopped functioning. He admits that S.V. Amrute (D.W.2) is one of the trustees of the said trust. He admits that he occupied the first floor as a tenant under his father.
59. He also admits that mental condition of fourth defendant continued in the same manner. In paragraph No.20 he has specifically admitted that his father (M.W. Gurjar) was keeping normal health till his death, except diabetes and hyper tension. He also admits that diabetes and hyper tension did not affect his day to day activities.
60. He admits that Ex.D.16 was executed by M.W. Gurjar when he was keeping sound and disposing state of mind. He also admits that his wife is an attesting witness to said Ex.D.16. It is also admitted by him that his father possessed testamentary capacity till his death.
61. D.Ws.2 to 4 are the doctors who treated M.W. Gurjar. Among them, P.W.2 doctor who attended Gurjar in Prabha eye clinic, who deposed about the eye surgery. In 127 his cross-examination, he admits that Sri Gurjar lost his sight in right eye.
62. He admits that Sri Gurjar last his right eye due to post operative infection. He has also admitted that Alzheimer's disease can progress acutely over a stretched period of time and it is his suspicion that Sri M.W. Gurjar was suffering from Alzheimer.
63. P.W.3 in his cross-examination admitted that he was treating M.W. Gurjar for diabetes and hyper tension. He admits that if a person is suffering from hallucination, he cannot deal with his bank transaction and day to day operations.
64. P.W.4 is a psychiatrist who said to have treated M.W.Gurjar. In his cross-examination admits that he has treated M.W. Gurjar only once and at that time there was no proven efficacious medication for his health condition.
He also answered that M.W.Gurjar was suffering from Senile Dementia Alzheimer type disease. He has also 128 answered that M.W. Gurjar has retained the mental capacity to the extent of 40%. While confronted with Exs.D.5 and D.6, the witness has answered that he cannot definitely say whether M.W. Gurjar was capable of executing Exs.D.5 and D.6. When confronted with Exs.D.8 and D.9, and questioned that it is written by a normal person, he has answered that he could not comment whether Gurjar had command over his faculties in a proper manner. He also answered same in the manner with regard to Ex.D.16.
65. The above is the oral evidence placed on record on behalf of the plaintiffs to doubt the mental capacity of Gurjar in executing Ex.D.21.
66. As against the said evidence, on behalf of the propounder of the Will first defendant got examined as D.W.1 and he has filed an affidavit in lieu of the examination in chief practically reiterating the contents of his written statement.
12967. In his cross-examination, he has answered that he is Commerce graduate and he was working earlier. He further answered that later on he is carrying on the business in diesel generator sets.
68. In his further cross-examination he has answered that M.W. Gurjar was managing his financial affairs himself and he had sound mental capacity till his death. In the long cross-examination except suggesting that M.W.Gurjar did not possess the required mental capacity and he has concocted Ex.D.21 with the help of S.G. Deshpande and S.V.Amrute, no other useful materials are elicited so as to disbelieve proper execution of Ex.D.21 or advance the case of plaintiffs.
69. S.V. Amrute is examined as D.W.2, who is one of the attesting witnesses to the Will dated 25.02.1993. He also deposed that he was acquainted with the family affairs of M.W.Gurjar as he is a close relative of the family.
13070. He has further deposed that he has seen M.W. Gurajar signing Ex.D.21 and later he has signed Ex.D.21.
Thereby, the propounder of Ex.D.21 (first defendant) has discharged the burden in establishing Ex.D.21 in due compliance to requirement of Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act.
71. In his cross-examination he stated that in the year 1962 he has come to Bengaluru and lived with M.W. Gurjar for the period of four years. He has admitted that most of the transactions of M.W. Gurjar was informed to him by M.W. Gurjar. He has further answered that first plaintiff well placed financially, so also his wife. He has further answered that the relationship between first plaintiff and his wife with M.W. Gurjar was not good since 1977. He has further answered that the same was told to him by M.W. Gurjar himself.
72. He has also answered that M.W.Gurjar was not diabetic patient, and he was having sound health and mental condition. He denied the suggestion that M.W. 131 Gurjar was not having sufficient mental capacity to execute the Will and he has given active support with first defendant and with doctor to concoct Ex.D.21.
73. With regard to appreciate proof of Will, the legal principles enunciated in the decision in H. Venkatachala Iyengar v. B.N. Thimmajamma and others reported in AIR 1959 SC 443 are culled out here under, which 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 132 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 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 133 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 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 134 proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on 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 135 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.
74. In a Judgment of co-ordinate Bench of this Court in the case of J.T. Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, reported in ILR 2008 KAR 2115 it is held as under:
"(A) INDIAN SUCCESSION ACT, 1925 --
SECTION 2(h) -- Will -- Proof of -- Legal requirements -- Duty of the Court -- Five steps to be considered -- HELD, 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 136 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, the first step is that 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 -- FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual -- The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will -- The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will -- The fifth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 --
SECTION 63 R/W SECTION 68 -- Execution of a Will under -- Attestation and Execution 137
-- Procedure -- HELD, The Will that is executed is in 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 -- 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 affixing 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 both of them should be present at the same time -- FURTHER HELD, Section 68 of the 138 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 -- It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, as such it is valid and enforceable."139
75. Gist of the legal principles enunciated in above decisions is that to succeed in proving the Will, the propounder of the Will is required to place satisfactory evidence that:
(i) the Will was duly signed by the
testator;
(ii) the testator at the time of signing the
Will was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free Will and lastly
(v) That the Will is free from suspicious circumstances surrounding the execution of the Will.
76. It is pertinent to note that the celebrated principles of law enunciated in Thimmajamma's case supra, which is usually termed as 'panchapadi' is being followed 140 practically in almost all judgments rendered by the Hon'ble Apex Court on the point.
77. This Court also had an occasion to consider legal principles which would govern the proof of Will following the dictum in the case of Thimmajamma and other authoritative pronouncements of the Hon'ble Apex Court in the case of Krishna Rao referred to supra.
78. Relevant portions in the case of Krishna Rao supra is culled out hereunder for the sake of convenience.
115. "The next question that needs attention of this court in upholding the genuineness of the disputed Wills is that improper distribution or bequeath under the Wills and Codicil.
116. Admittedly the contents of the Wills and codicil referred to supra answers the said question in abundance. The testators namely Murthy Rao and Rangamma had their own reasons in arriving at the conclusion as to bequeath and in the absence of contra evidence placed on record by the plaintiff, this court has to record a finding that mere disinheritance of other sharers or lesser 141 share has been given to few sharers would not ipso facto be treated as suspicious circumstance to doubt the genuineness of the wills and codicil as is held by Hon'ble Apex Court in the case of Savithri and others Vs. Karthyayani Amma and others reported in (2007) 11 SCC 621.
117. Further, in the case of P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar reported in - 1995 Supp (2) SCC 664, the Hon'ble Apex Court has held that -
"It is the duty of the propounder of the Will to remove all the suspicious circumstances surrounding the Will. But such suspicion must be real, germane and valid and not fantasy of the doubting mind. Further it is also held that merely on the ground that the whole of estate was given to a son in exclusion to the daughter itself is not sufficient to generate suspicion regarding the Will."
118. While explaining the meaning of what is a suspicious circumstance surrounding a Will, in the case of Indu Bala Bose v. Manindra Chandra Bose reported in (1982) 1 SCC 20 the 142 Hon'ble Apex Court explained the meaning of the word "suspicious" in the following words-
"Needless to say that any and every circumstances is not a "suspicious"
circumstance. 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."
119. It is argued on behalf of plaintiff that health condition of Murthy Rao and Rangamma was not sound in view of the admissions obtained in the cross examination of DW1 and therefore, a thick cloud of suspicion is hovering over the veracity of the Wills and Codicil.
120. But the material evidence on record is not sufficient enough to hold that physical ailments of both the testators interfered in mental fitness in taking appropriate decision. It is settled principles of law that sound and disposing state of mind is to be tested in a given case depending upon the facts and circumstances of that case.
121. In the case on hand, when such test is applied, the material evidence on record placed by the parties are not sufficient enough to hold that 143 testators did not possess required mental fitness at the time of execution of Wills and Codicil. Detailed cross examination of attesting witnesses on behalf of the plaintiff did not yield any plausible material in establishing weak or fragile mental fitness of the testators.
122. Further, though the propounder is expected to prove the Will by placing sufficient and cogent evidence, the propounder is not expected to prove a Will by mathematical certainty. The burden expected to be discharged by law is only to the extent that the propounder has to show the execution in terms of the essential statutory requirements under the Act; absence of suspicious circumstances; and mental fitness of the testator. Thus, while appreciating the material evidence placed on record, the court is not expected to look for strict proof. In a given case, the rule to be applied in such cases is the celebrated rule namely, "Arm Chair rule". More so, while interpreting the contents of a Will. Said rule envisages that:
"You may place yourself, to speak, in (the testator's) armchair, and consider the circumstances, by which he was surrounded 144 when he made his Will, to assist you in arriving at his intention."
123. As to the discharge of burden by the propounder of will, Hon'ble Apex Court in Shivakumar & Others. v. Sharanabasppa, reported in (2021) 11 SCC 277 has categorically held that if a person challenging the Will alleges fabrication or fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved by him. In the case on hand, plaintiff having joined the issue with regard to proof of Wills and Codicil did not lead any rebuttal evidence to establish that Wills and Codicil are fabricated or got executed by playing fraud or coercion on testators.
124. To sum up, it is enough to refer to one of the recent decisions of Hon'ble Apex Court in the case of Kavita Kanwar vs. Mrs. Pamela Mehta and Others reported in (2021) 11 SCC 209, wherein Hon'ble Apex Court referred to almost all previous decisions right from H.Venkatachala Iyengar supra and held that in a given case a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. In 145 the matter of appreciating the genuineness of the execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. It is further held that the Court is not required to apply Article 14 of the Constitution of India, to dispositions under a Will.
125. There cannot be any dispute with regard to the legal principles enunciated in Madhukar supra relied on by the learned counsel for respondent. In fact, in paragraph No.9 of the said judgment referred to supra, their lordships have ruled that when once the propounder adduces prima facie evidence in proving the competence of the testator and execution of the Will in the manner contemplated under the law, the contestant opposing the Will should place such material on record rebutting the material evidence placed by the propounder as the onus would shift to the contestant of the Will. If any such evidence is placed by the person who opposes the Will, the onus would again shift back to propounder. In the case on hand, there is no rebuttal evidence placed by the plaintiff who is contesting the genuineness of the Wills and Codicil. As such, the onus did not re-
146shift to the propounder-first defendant. Therefore, the decision in Madhukar's case supra, is not of much avail to the respondent-plaintiff in their case being advanced to any extent.
126. Since, this court has discussed at length as to the legal principles in establishing the genuineness of a Will in a given case with authoritative pronouncements of Hon'ble Apex court, further discussion on the decisions relied on by the learned counsel for the appellants is not necessary."
79. In the light of the legal principles enunciated in Thimmajamma, J. T. Surappa and Krishna Rao supra, when the material evidence on record is analyzed, having regard to the admissions made by P.W.1 in his cross-
examination that M.W. Gurjar had a normal health till his death assumes a greater importance in assessing the mental health (capacity or fitness) of M.W. Gurjar at the time of execution of Ex.D.21.
80. Further, the doctors who have been examined on behalf of plaintiff as P.Ws.2 to 4, have not specifically 147 stated as to what exactly the mental deficiency that M.W.Gurjar possessed so as to accept the contention on behalf of plaintiff that M.W.Gurjar was not mentally fit to execute Ex.D.21 inasmuch as each of those witnesses have gone on giving different versions in their examination-in-
chief itself. Further, Ex.D.22 is the draft of Ex.D.21.
P.W.1 admits signature of Sri M.W.Gurjar beneath the words 'draft approved' in Ex.D.22. Material on record also depicts that Sri M.W.Gurjar was attending his day to day activities including the financial aspects in filling up bank challans etc., Further, Ex.D.16 came to be executed on 31.12.1992 which is few months earlier to execution of Ex.D.21. Ex.D.16 is not in dispute. In fact, wife of first plaintiff is an attesting witness to said document.
81. If at all as is canvassed by plaintiff that M.W.Gurjar was suffering from senile dementia, soon after the eye surgery, how could M.W.Gurjar execute Ex.D.16 is a question that remains unanswered on behalf of the plaintiff. Moreover, Ex.D.21 is a registered document and 148 M.W.Gurjar has visited the office of the Sub Registrar along with D.W.2-S.V.Amruthe for the purpose of execution and registration of Ex.D.21. It is not forthcoming on record that along with M.W.Gurjar first defendant or his wife had accompanied M.W.Gurjar either to the office of the advocate who drafted Ex.D.21 or to the office of the Sub Registrar. Therefore, it should be presumed that Ex.D.21 has been executed in the natural course by Sri M.W.Gurjar.
82. In view of the foregoing discussion, the theory put forth on behalf of the plaintiff that M.W.Gurjar did not possess required mental fitness in executing Ex.D.21 cannot be countenanced in law. As such, this Court has no hesitation whatsoever in holding that M.W.Gurjar had sufficient mental capacity to execute Ex.D.21.
83. This would take us to the next step, namely, suspicious circumstances surrounding the Will. According to plaintiff, exclusion of first plaintiff and fourth defendant in the bequeath made under Ex.D.21 is the suspicious 149 circumstance and depict the hand of first defendant in background in concocting Ex.D.21 with active collusion of attesting witnesses.
84. In order to appreciate the said aspect of the matter, material available on record is suggestions made to first defendant and D.W.2 in the cross-examination. It is pertinent to note that those suggestions have been denied by D.Ws.1 and 2 categorically. Moreover, D.W.2 being close relative, did not possess any enmity or animosity against plaintiff nor any extra affinity towards the first defendant to depose in favour of the propounder of the Will. Mere answer of D.W.2 in cross-examination that M.W.Gurjar did not suffer from diabetes itself is not sufficient to discard his entire evidence. Nor such answer did not shake the credibility of the version of D.W.2 in entirety.
85. It is now settled principles of law that mere exclusion of a kith and kin from bequeath do not ipso facto 150 can be treated as a suspicious circumstance in view of the principles of law enunciated in the aforesaid decisions.
86. Further, in the case on the hand, the contents of Ex.D.21 itself make it clear that why M.W.Gurjar has excluded first plaintiff from the bequeath. It is also pertinent to note that First plaintiff possess an immovable property at R.M.V Extension. Material evidence show that purchase of the said property M.W.Gurjar had contributed financially. If M.W.Gurjar had decided to bequeath portion of the suit property (Gurjar house) in favour of first plaintiff, during his life time, he would not have treated first plaintiff as a tenant in the first floor of the property vide Ex.D.16. Very fact that first plaintiff has been allowed to occupy portion of the Gurjar's house as tenant that too in the lifetime of M.W.Gurjar presupposes that all was not well in the relationship between first plaintiff and late M.W.Gurjar. Therefore, while considering the intent of the executant in interpreting the bequeath made under the 151 Will, the Court has to step into the shoes of the executant and find out whether the bequeath is reasonable or not.
87. Further, Attestors' oral testimony in this regard assumes a significant importance. In this regard, D.W.2 one of the attestors to Ex.D.21 categorically answered in cross-examination that relationship between first plaintiff and M.W.Gurjar was not cordial. He has answered that he came to know about the same from M.W.Gurjar himself.
88. Further, it is also found from contents of Ex.D.21 that life interest has been created in favour of defendant No.4 who is the mentally challenged sister of first plaintiff and first defendant which was not the case in earlier Will.
Therefore, the contentions urged on behalf of the appellant that Will is to be construed as suffering from suspicious circumstances cannot be countenanced in law.
89. Since P.W.1 has admitted the signature of M.W.Gurjar on Ex.D.21, attestor has also identified the signature of M.W.Gurjar and has deposed that he has 152 signed Ex.D.21 after M.W.Gurjar has signed, there is sufficient compliance of legal requirements with regard to the proof of Will. No rebuttal evidence is placed on record by plaintiff with regard to proof of Will after examination of propunder and Attestor.
90. No other point is urged either to hold that Ex.D.21 is not valid on behalf of the appellant.
91. In view of the fact that the plaintiffs/appellants have themselves relied on the judgment of this Court in Krishna Rao and in view of the above discussion, of factual aspects this Court does not deem it fit to carry out further discussion on the other judgments relied on by the parties in detail referred to supra.
92. In view of the foregoing discussion, point No.1 is answered in the Negative and point No.2 in the affirmative and point No.3 in the Negative.
153Regarding point No.4:
93. In view of findings on point Nos.1 to 3, this Court pass the following:
ORDER Appeal is meritless and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE SRA/MR