Karnataka High Court
Chandrashekhar S/O Siddappa ... vs Suresh S/O Puravantapa Nuggikeri, on 22 September, 2020
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
-1-
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
R.F.A. NO.100089/2015 C/W R.F.A. NO.100090/2015
IN R.F.A. NO.100089/2015:
BETWEEN
CHANDRASHEKHAR
S/O SIDDAPPA CHUNCHNOOR,
AGED: 50 YEARS,
OCC: GOVERNMENT SERVICE,
R/O: NALVADI, TQ: NAVALGUND,
DIST: DHARWAD. ... APPELLANT
(BY SRI.S.H.MITTALKOD & SRI.S.L.MATTI, ADV.S)
AND
SURESH
S/O PURAVANTAPA NUGGIKERI,
AGE:35 YEARS,
OCC:AGRICULTURE,
R/O: MANGALWAR PET,
MENASHINAKAI GALLI,
DHARWAD. ... RESPONDENT
(BY SRI.V.G.BHAT, ADV.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 30.03.2015 PASSED IN
O.S. NO.1/2014 PASSED ON THE FILE OF THE PRINCIPAL
-2-
DISTRICT AND SESSIONS JUDGE, DHARWAD, DISMISSING THE
SUIT FILED FOR DECLARATION AND ISSUE OF PROBATE.
IN R.F.A. NO.100090/2015:
BETWEEN
CHANDRASHEKHAR
S/O SIDDAPPA CHINCHNUR,
AGED: 50 YEARS,
OCC:GOVERNMENT SERVICE,
R/O: NALVADI, TQ: NAVALGUND,
DIST: DHARWAD. ... APPELLANT
(BY SRI.S.H.MITTALKOD & SRI.S.L.MATTI, ADVS.)
AND
SURESH
S/O PURAVANTAPPA NUGGIKERI,
AGE:35 YEARS,
OCC:AGRICULTURE,
R/O: MANGALWAR PETH,
MENASHINAKAI GALLI,
DHARWAD. ... RESPONDENT
(BY SRI.V.G.BHAT, ADV.)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 30.03.2015 PASSED IN
O.S. NO.1/2014, PASSED ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, DHARWAD, DISMISSING THE
SUIT FILED FOR DECLARATION AND ISSUE OF PROBATE.
THESE RFAs COMING ON FOR FINAL HEARING THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
-3-
JUDGMENT
These appeals are filed impugning the judgment dated 30.03.2015 in O.S. No.1/2014 on the file of the Principal District and Sessions Judge, Dharwad (for short 'Probate Court'). The Appeal in RFA No. 100089/2015 is as regards the dismissal of the suit and the other appeal in RFA No. 100090/2015 is regards the acceptance of the Counter-claim and grant of permanent injunction. The suit in O.S. No.1/2014 is because of an application filed by the appellant under Section 276 of the Indian Succession Act, 1963 (for short, 'Successions Act') for grant of probate of the Will dated 15.11.2001 allegedly executed by Smt.Yallavva Tippanna Javoor (for short 'testatrix') bequeathing her immovable properties in favour of the appellant. This application under Section 276 of the Succession Act is registered as O.S. No.1/2014 in the circumstances that are detailed infra. The Probate Court by the impugned judgment has rejected the appellant's prayer for probate of the Will dated 15.11.2001 while ordering that the -4- respondent's counter claim is accepted and restraining the appellant by permanent injunction from restraining the respondent's possession of the subject properties.
2. Smt. Yellavva (referred to as, 'the testatrix') was the owner of certain immovable (referred to as, 'the Subject properties') and she breathed her last on 29.03.2002. The testatrix's husband Sri.Tippanna Javoor died in 1960s, and since then the testatrix was in possession of the subject properties as the absolute owner thereof1. The appellant filed application under Section 276 of the Succession Act in P&SC No.12/2012 seeking probate without arraigning any person as an opponent. This petition was allowed by order dated 18.10.2012 granting probate of the Will dated 15.11.2001 asserted by the appellant. The appellant, after the order dated 18.10.2012, entered caveat before this Court in anticipation of the respondent's challenge to the order dated 18.10.2012, and the respondent 1 There is also no dispute that the Testatrix owned certain immovable properties -5- challenged the order dated 18.10.2012 in M.F.A. No.22645/2013 before this Court. This appeal in M.F.A. No.22645/2013 is allowed by this Court on 29.08.2013 setting aside the order dated 18.10.2012 and remanding the matter for disposal in accordance with law.
3. After the remand, the respondent is impleaded as the defendant O.S. No.1/2014, and the appellant has amended the petition seeking declaration of title including a paragraph to assert that the appellant is the testatrix's elder sister's son. The testatrix, after the death of her husband, because there was nobody to look after her at her husband's place viz., Garag, started residing with the appellant's mother and her family at Nalvadi. The appellant's mother and her family, including the appellant, looked after the testatrix providing for all her requirements. The testatrix treated the appellant as her own son, and the testatrix out of her love and affection for the appellant, executed in his favour the Will dated 15.11.2001 cancelling/revoking -6- the earlier Will dated 29.03.1990 executed by her. The testatrix was in sound state of dispossession and she has executed the Will dated 15.11.2001 on her own volition.
4. The respondent filed his written statement denying the assertions and contending that the respondent's mother is the testatrix's elder brother's daughter. The testatrix after the death of her husband was residing both at Garag and Dharwad where the respondent's mother and her family including the respondent reside. They looked after the testatrix, and because of her love and affection for the respondent, she executed the registered Will dated 29.03.1990 in his favour bequeathing the subject properties. The testatrix was in sound disposing state of mind. The appellant set up the Will dated 15.11.2001 to stake a false claim to the properties owned by the testatrix and bequeathed to the respondent.
-7-
5. Additionally, the respondent has filed a counter claim for declaration that he is the absolute owner of the subject properties consequent to the bequeath in his favour by the testatrix under the Will dated 29.03.1990 and for permanent injunction restraining the appellant from interfering with his possession of the subject properties.
6. It is obvious from the rival pleadings that the appellant and the respondent contrarily assert that the testator resided with them. There is a dispute about the inter se relationship with the testatrix. The appellant and the respondent are also at lis on the last Will testament executed by the testatrix: the appellant contends that the registered Will in favour of the respondent dated 29.03.1990 is revoked and testatrix has executed a last Will testament dated 15.11.2001 in favour of the appellant, while the respondent asserts that the Will dated 15.11.2001 asserted by the appellant -8- is concocted and fabricated and the Will dated 29.3.1990 is not cancelled.
7. In the light of these rival probate, the Probate Court has framed the following issues:
1. Whether the Plaintiff removes the suspicious circumstances surrounding the Will dated 15.11.2001.
2. Whether the Defendant proves that he is the owner of the suit schedule property by virtue of Will dated 29.03.1990 executed by deceased Yallavva Tippanna Javoo.
3. Whether the Defendant is entitled for counter claim.
4. Whether the Defendant is entitled for permanent injunction.
5. What order or decree.
8. The appellant has examined himself as P.W.2 and has examined Sri.Fakirappa S/o. Basappa Javoor, an attester of the Will dated 15.11.2001 as P.W.1. The appellant has marked the Will dated 15.11.2001 (Ex.P-1), Paper Publication dated -9- 28.11.1968 (Ex.P-3), Death Extracts of the testatrix and his mother, Smt.Gangamma (Exs.P-4 & P-5), Voter List of Nalvadi Village, Navalgund Taluk, Dharwad District (Ex.P-6), Photographs (Exs.P-7 to Ex.P-12), citation dated 12.08.2012 (Ex.P-19) and Revenue Records for the subject properties.
9. The respondent has examined himself as D.W.1 and Sri.Srikant @ Rudrappa Menasinakai as D.W.2. This witness Sri.Srikant is examined as one of the attester to the registered Will dated 29.03.1990. The respondent has relied upon the original of the registered Will dated 29.03.1990 (Ex.D-4), Mutation Extracts in favour of the Testatrix (Ex.D-5), a Legal Heirs Certificate in favour of Testatrix (Ex.D-6), the legal notice issued on behalf of Indian Overseas Bank to the Testatrix and another (EX.D-11), a Certificate issued by Mahalaxmi Cooperative Bank (Ex.D-12), Tax Paid receipts (Exs.D-13 & D-14), the caveat entered by the appellant before the Probate Court (EX.D-15) and
- 10 -
certain notices issued by the Tahasildar (Ex.D-17 & D-
18).
10. The probate Court considering the evidence on record in the light of decision of this Court in J.T.Surappa and another vs. Sri.Satchidhananadendra Saraswathi Swamiji Public Charitable Trust and others2, a judgment by the Single Judge of this Court and a Division Bench judgment of this Court in Virupakshappa Malleshappa Sanklapure and others vs. Smt.Akkamahadevi and others3 has concluded that though the appellant has established the due execution of the Will dated 15.11.2001, he is not able to explain suspicious circumstances surrounding the execution of the Will. The Probate Court in arriving at this conclusion has tested the appellant's case as against the five tests which are as follows:
2
2008 (3) KCCR 1484 3 2002 (1) Kar.L.J. 394 (DB)
- 11 -
(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will.
(2) Whether the natural heirs have been disinherited? If so, what is the reason.
(3) Whether the testator was in a sound state of mind at the time of executing the Will.
(4) Whether any suspicious circumstances exist surrounding the execution of the Will, and, (5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act.
11. The Probate Court has opined that the first, second and fifth test are satisfied, but the appellant has unable to satisfy either the third or fourth test which required the appellant to establish that the testatrix was in sound state of mind at the time of execution of the Will dated 15.11.2001 or explain the suspicious circumstances surrounding the Will.
- 12 -
12. The circumstances that are considered as suspicious by the Probate Court are:
i. The Will dated 15.11.2001 is not
registered.
ii. The scribe of the Will dated 15.11.2001 is not examined, and each page of the Will is not signed.
iii. The appellant is not made as party in P&Sc No.12/12.
iv. the Respondent has filed Caveat in High Court immediately after grant of probate in his favour in P&Sc No.12/12.
v. The Will dated 15.11.2001 has not seen the light of the day for about 12 years. vi. The appellant has not explained to how he came in possession of the Will Ex.P-1
13. The Probate Court, insofar as the counter claim by the respondent, answering Issue No.2, which requires the Probate Court to decide on whether the respondent is able to prove that he is the owner of the suit schedule property by virtue of the Will dated
- 13 -
29.03.1990, has concluded that such question would not survive for consideration in the light of its opinion or other issues. However, considering the revenue entries for the subject properties in the name of the respondent, the Probate Court has granted relief to the respondent which reads as under:
The suit of the Plaintiff is dismissed. The counter claim of the Defendant is accepted.
The Plaintiff, his men and servants or anybody claiming through him are restrained by means of permanent injunction from interfering with the peaceful possession and enjoyment of the Defendant over the suit properties
14. The learned counsel for the appellant prefaces his argument in support of the appeal submitting that the Probate Court having found that the appellant was successful in establishing the due execution and attestation of the Will dated 15.11.2001 could not have refused probate on the ground that the
- 14 -
appellant has not explained the suspicious circumstances. The learned counsel argues that as the appellant has established the due execution and attestation of the Will dated 15.11.2001, the onus of establishing that the Will dated 15.11.2001 was a concocted document would be on the respondent who has taken up such contention. But, the respondent has not placed any material to substantiate such defence. Therefore, the Probate Court has committed a serious irregularity in not shifting the onus on the appellant and in concluding that the appellant has not been able to establish suspicious circumstances.
15. The learned counsel next contends that neither the fact that the Will dated 15.11.2001 is unregistered, or that each page of this Will does not bear the signature of testatrix, or that the respondent was not initially arraigned as a party in the present proceedings, or non-examination of the scribe or the failure to explain how the appellant came into
- 15 -
possession of the Will dated 15.11.2001 could not have been construed as suspicious circumstances.
16. The learned counsel elaborates arguing that a Will is not document which requires compulsory registration. The Will relied upon by the respondent viz., Will dated 29.03.1990 also does not contain the signature of the testatrix on each page. These circumstances should be considered in deciding whether it could be reasonably concluded that the Will dated 15.11.2001 is shrouded by suspicious circumstances; and when these circumstances are considered, it cannot be reasonably concluded that the Will dated 15.11.2001 is suspicious because of these circumstances. As regards the Will dated 15.11.2001 not seeing the light of the day for about 12 years, the learned counsel submits that mere delay cannot be a suspicious circumstance. The totality of the circumstances will have to be considered. The learned counsel relies upon the Division Bench of this Court in
- 16 -
Smt.Shantamma and others vs. Bhavanevva and others4 in support of his submission that the delay in the appellant initiating probate proceedings or seeking mutation based on the Will dated 15.11.2001 would not be fatal.
17. The learned counsel lastly contends that the Probate Court could not have granted the relief of permanent injunction especially after having found that the question whether the respondent is able to prove ownership of the subject properties based on the Will dated 29.03.1990 would not survive for consideration. The respondent's counter claim, including the prayer for grant of permanent injunction, would be out of the bounds of a probate proceedings as the Probate Court could only decide on whether a last testament and Will is duly executed and attested. As such, the impugned order insofar as it reads that the counter claim is 4 2018 (4) KCCR 3065 (DB)
- 17 -
accepted and the grant of permanent injunction cannot be interfered.
18. The learned counsel for the respondent submits that the respondent relies upon the Will dated 29.03.1990. The due execution of this Will dated 29.03.1990 is beyond dispute inasmuch as the appellant contends, while admitting the due execution of this Will dated 29.03.1990, that this Will has been cancelled/revoked by the testatrix by the subsequent Will dated 15.11.2001 executed by her in his favour. The appellant, who has failed to explain the suspicious circumstances surrounding the due execution of this Will dated 15.11.2001, cannot take advantage of the Probate Court's finding that the appellant is able to establish the due execution and attestation of the Will.
19. The learned counsel urges that sufficiently explaining the suspicious circumstances surrounding the execution of a Will is part of the obligation in law to prove execute the due execution of the Will dated
- 18 -
15.11.2001, and the onus will always be with the propounder of the Will in dispute to explain these suspicious circumstances. The Probate Court, in the facts and circumstances of the case, has rightly identified the suspicious circumstances, and on appreciation of the evidence on record has concluded that the appellant has failed to explain such suspicious circumstances. Therefore, it is concluded that the appellant is not entitled for probate of the Will.
20. The learned counsel for the respondent, insofar as the acceptance of the counter claim and grant of permanent injunction as recorded in the operative part of the impugned judgment, submits that he cannot dispute that it is settled law that a Probate Court will only examine the proof of due execution of the Will and does not decide on rights to immovable properties, including the right to possession. Therefore, the respondent may be permitted to withdraw the counter claim with liberty to initiate every such proceeding as
- 19 -
would be available to the respondent in law to protect his possession of the subject properties bequeathed in his favour.
21. This Court need not be detained on the question the permissibility of the Probate Court granting permanent injunction in favour of the respondent accepting the counter claim in view of the submission by the learned counsel for the respondent seeking leave to withdraw the counter claim with liberty to the respondent to initiate appropriate proceedings in law. Therefore, the appellant will succeed in the challenge against the acceptance of the counter claim in granting permanent injunction in favour of the respondent, but subject to the liberty to the respondent, subject to all just exceptions in law, to initiate all proceedings as would be permissible in law to protect his rights in the subject property, including the asserted possession of the subject properties. As such, the question that remains for consideration in this appeal is:
- 20 -
"Whether the Probate Court has committed any irregularity in refusing probate of the Will dated 15.11.2001 on the ground that the appellant has not explained the suspicious circumstances that surround the execution of this Will."
22. The Hon'ble Supreme Court in the recent decision in Kavita Kanwar vs. Pamela Mehta and others5 has reiterated principles that govern the adjudication of disputes concerning proof of a Will referring to its decision in Shivakumar vs. Sharanabasappa decided on 24.04.2020. The principles emphasized reads as follows:
1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.
5
2020 SCC Online SC 464
- 21 -
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot 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 capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier
- 22 -
on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the
- 23 -
suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious"
would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above- noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will.
On the other hand, any of the
circumstance qualifying as being
suspicious could be legitimately
explained by the propounder. However, such suspicion or suspicions cannot be
- 24 -
removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
23. The Hon'ble Supreme Court has declared that a propounder of the Will, apart from satisfying the
- 25 -
usual tests required to prove a document, will have to prove attestation by examining atleast one attesting witness as contemplated under Section 63 of the Succession Act. The Hon'ble Supreme Court has emphasizing that because of the unique feature of a Will that it speaks from the death of the testator and because the maker thereof is not available for deposing about the circumstances in which the Will was executed, introduces an element of solemnity in the decision as to whether the document propounded is the last Will of the testator. The Hon'ble Supreme Court has also declared that the initial onus, naturally, lies on the propounder to establish the essential facts which go into the making of a Will. This initial onus includes the onus to explain suspicious circumstances surrounding the execution of the Will. The onus to explain suspicious circumstances is on the propounder and the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. Further, it is declared that even in cases
- 26 -
where it is alleged that the Will is fabricated or as a result of fraud, undue influence or coercion, the initial onus is on the propounder of the Will to remove all reasonable doubt; and whether a particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. If legitimate suspicion arises about the execution of the Will, such suspicion cannot be removed by mere proof of sound disposing state of mind of the testatrix or the signature of the testatrix coupled with the proof of attestation.
24. This enunciation by the Hon'ble Supreme Court would suffice to reject the canvass that the Probate Court after concluding that the appellant has established due execution and attestation of the Will dated 15.11.2001 could not have examined the question that Will dated 15.11.2001 is surrounded by suspicious circumstances. On the question of suspicious circumstances, it would be necessary to first advert certain admitted facts and circumstances of the case.
- 27 -
25. There is no dispute that the testatrix is the owner of the subject properties and as owner of the subject properties, she could have executed a Will in anyone's favour given the admitted fact that she did not have class I legal heirs. The testatrix, in a quirk of circumstances, has breathed her last on the same day as her elder sister Smt.Gangamma (the appellant's mother). The appellant has produced the photographs of the last rites being performed for the testatrix and her elder sister. The appellant and the respondent do not dispute that the two sisters died on the same day and a news item about their funeral on the same day was published in the local day. The appellant asserts that this fact bears testimony to the appellant's case that the testatrix resided with the appellant at Nalvadi. On the other hand, the respondent contends that the testatrix, who was residing with the respondent and his family at Dharwad, and sometimes at Garag, was only visiting her sister on coming to know that she was ailing. The
- 28 -
suspicious circumstances discussed by the Probate Court will have to be examined in the light of the controversy about the testatrix's domicile.
26. The appellant apart from the fact that the testatrix and his mother died on the same day and his own testomony, relies upon the voters ID of Nalvadi constituency. The respondent on the other hand relies upon the certificate issued by the Mahalaxmi Co- operative Bank stating that the testatrix resides in Dharwad. The respondent also relies upon a legal notice issued to the testatrix on behalf of the Indian Overseas Bank and the notice issued by the Tahasildar, Exs.D-17 and D-18.
27. The appellant contends that after the death of her husband, the testatrix started residing with his family members and therefore, the testatrix had natural love and affection for the appellant. It is for this reason that the testatrix cancelled the Will in favour of the respondent and executed the Will dated 15.11.2001 in
- 29 -
his favour. The appellant though contends the testatrix was residing with his family members at Nalvadi and relies upon the circumstances discussed above, has not mentioned any circumstance that could explain why notices were addressed to the testatrix at Dharwad if she was not residing in Dharwad.
28. These notices to testatrix are in the usual course of transactions. The notices by the Indian Overseas Bank, which is dated 25.10.2000, is issued calling upon the testatrix to pay certain amounts due from the testatrix and another stating that the testatrix approached the Indian Overseas Bank for securing financial assistance for agricultural purposes and Shri Puravantappa Bheemappa Nuggikeri, another resident of Mangalwarpeth, Dharwad had stood guarantee. The notices addressed by the Tahasildar as per Ex.D.17 and D.18, though after the demise of the testatrix in 2002, is addressed to the testatrix as the resident of Mangalwarpeth, Dharwad under the care of the
- 30 -
respondent's father. These circumstances corroborate the respondent's case that the testatrix resided with them than the appellant's case that the testatrix resided with them. Further this Court is of the considered opinion that these circumstances overwhelm the circumstances relied upon by the appellant such as the testatrix being shown as a resident of Nalvadi. This circumstance also defeats the appellant's case that the testative executed the Will dated 15.11.2001 because she was residing with his family.
29. The probate Court has next considered the fact that though the appellant relied upon the Will dated 15.11.2001, the Will has not been brought out by the appellant until initiation of the present proceedings in what could be considered as contrived circumstances. The Probate Court has considered the filing of the application for probate without arraying the respondent as a contrived circumstance in view of the fact that the revenue records for the subject properties were made in
- 31 -
the name of the respondent with reference to the Will way back in the year 2002. If the revenue records, after the demise of the testatrix on 29.03.2002, were made in the respondent's name, that too based on the Will dated 29.03.1990, and if those revenue entries continued as is obvious from Exs.D.1 to D.3 for over ten years, the appellant's failure to include the respondent in the application as a opposite party indeed seems a deliberate intrigue. Especially when it is seen that caveat is filed against the respondent and his father, before the Principal District Judge, Dharwad as per Ex.D.15.
30. Further, the appellant has not offered any explanation to justify the lag of ten years in initiating the probate proceedings given the circumstances that the revenue records for the subject property were already made in favour of the respondent with reference to the Will. The contention that because the appellant has proved the execution of the Will, the delay in filing
- 32 -
the probate proceedings would not be material cannot be accepted in the circumstances of this case. As declared by the Hon'ble Supreme Court in the aforesaid decision, what constitutes suspicious circumstances would depend on facts and circumstances of each case, and in the facts and circumstances of the case discussed in detail here, this would be a very crucial circumstance that arouses suspicion.
31. There is no dispute, as would be obvious from the appellant's case, that the appellant does not dispute the execution of the registered Will dated 29.03.1990 in favour of the respondent, but it is the appellant's case that this Will is subsequently cancelled/revoked by the testatrix and this cancellation/revocation is by the Will dated 15.11.2001 executed in his favour. In the present case, this Court is of the considered opinion that the delay in explaining the initiation of the proceedings based on the Will also creates a doubt about the due execution of the Will. As
- 33 -
such, this Court is of the opinion that the Civil Court's conclusion that the appellant has not explained suspicion circumstances shrouding the due execution of the Will dated 15.11.2001 does not suffer from infirmity.
For the foregoing the following:
ORDER a. The appeal in R.F.A. No.100090 of 2015 is allowed and the impugned judgment dated 30th March 2015 in O.S. No.1 of 2014 is modified to a limited extent by setting aside the operative portion which reads that the respondent's counter-claim is accepted and the appellant is restrained by permanent injunction from interfering with the respondent's possession of the suit schedule properties, with the observation that the respondents shall be at liberty to initiate every such proceedings, subject to all just
- 34 -
exceptions in law, to protect his right in the subject properties. b. The appeal in R.F.A. No.100089 of 2015 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rsh/Kms