B Ramamurthy vs S V Balakrishna on 16 July, 2010

[Cites 13, Cited by 1]

Karnataka High Court

B Ramamurthy vs S V Balakrishna on 16 July, 2010

Bench: D.V.Shylendra Kumar, N.Ananda

IN THE HIGH COURT OF' KARNATAKA AT BANGALSRE

DATED '£'H£S THE 16"" DAY 012' JULY, 2010 

PRESENT

THE HONBLE MRJUSTICE D V SHYVLENDRAV 

AND
THE HON'BLE MR.JUS'i'-I__CE hf 'AN£»':.i{\EI)A   

Regal;-;r{TTE:.r§;.T:4ﬂpMg,«;_cd, No,?I:  0.1: % % 
  -   "

Sri B.Ramamurthy, _T  A
S/0 Late Byregowda,   '
Aged 68 years,    V 

No. 23/4, surubhi2_"La3»u;::.,  
Shivanahalli, YeE'a2i,aIika',_
Banga}ore--560 O€:'g4L:..

. . .APPELLﬂLN'I"

(By Sriyuths : IV..S.Véhkat§krishfi'a.,__R.S.Sur1ciararam &
Smt.Kavitha.N., ;4Ldv0¢a.t,i-3-5)    ' 

L  Sri Sfy;Ba.¥.akriéfm&....Av
 "A.ge"ci'- 465"yeér$

. 2.  ':tri.s;V.z$%aga§:;3.V.1~~

Aged"~44 ye'ai2_*s '

 ' '.SriS.f/'.2'§aréndra
'  éﬂyears

    iiétkshamma

 _"'~;Xg(-.gd 66 years

 



 

(Respondents 1 to 3 are
the sons & respondent No.4 is the
wife of Late B.Veeranna Gowda,

residing at No. 1436, Poornima Ni1ya--._  H
Nehrunagar Extention .  '

Yelahanka
Bangalore-560 064].

5.

Smt. M.P.Rudramma.
Proprietrlx,   --  .
Prakash Touring 'i'aI}:ie£;,  V. " '
Gandhinagar, Yelah'a'nka',> .  
Bangalore-560 O64,...._ -..   .
Smt. Chariapé1k'a., _  ,  "" "
W/ 0. Sr; .~A.'Jé ';1ardhVana'"' Gdwda,
Aged 42 years», 4 '  .  
Farnf-_~ S,F1P€:.!'1nVt'E;!1dC.1'>lt¢
A.gri.cult1'14':'a4;hZ_-V RVesea'reh. _Sta_tion ,
Kanéekan adi, Vikiangalcxe 

Srnt, shyiaja V ..  A
Wig Sri R.Ra=mesh,Babu,

 AgédE»'A36VyearS' . _____ ..

'Asust.,VSeed"P:oduction Officer,

    Sindhanur,

'~Raichurf}1)i$trict.

 JR.'Saf14'1yanarayana Raju,

_  AAS/0 Rainasubbaraju, Major,
ff VN4o.._188/32/1, Bhashyam Circle.
'..V'S:-waashivanagar, Bangalore«--560 080.

. =  D. Yogandhar,

S/o Late Venkataramana Reddy,



   

Aged 51 years,
No.188/32/IA, Bhashyam Circle,
Sadashivanagar, Bangalore-560 080.

10. Sri S.Nanda Gopala Reddy,   
S/o Late Kodandarama Reddiy, 

Major ;  A
No.188/32/ IA, Bhashyam Cire'1_e."
Sadashivanagar   V    
Bangalore-560 O80.  " _ ..;-RESPON;I)EN'I'S

[By Sri T.Se-shagiri Rao  Smt.NV;Gee'f1_1Va,;vL' A.dvoca£ee for R1 to
R7; Sri V.Vijaykun1ar. Adve-sate IfT.'8 to: Ru1'0_]

THIS APPEAL L3 ;f1LED"UN.i)¥Ei§  izée R/W ORDER 41
OF C.P.C..   DECREE DATED
16.04.2003. PA€:3.g;Ei1) ;1_1$I   ON THE FILE OF xx
ADDL.   CCH No.32. DISMISSING

THE SUIT F03 SEPARATE POSSESSION.

 aﬁpea} hae§i1g"heen heard and reserved for judgment on

fV2 1.,06.4 N.Ananda J .. delivered the foilowing:-



4
JUDGMENT

The L11'1su(:eessi'L1l plair1£'.ii'l' in O.S.l\io.7'901 / 1991. (suit for partition]. on the file of the XX Add]. City Civil Judge. has filed this regular first appeal. l l Al

2. In this appeal. parties would be _"

before the {rial Court. V . l l

3. Before adveréing lo the pleiaiclings '«Llo»...:.sVs1.fes the suit. it is necessary to slate §;e.--:.~;m.{¢d regard to relationship of parties

4. Lat1eV"BLlV"eeif£1111;éif"Gowfi-2:1, leif.e'llVlB.Ke1npegwoda and the plaintiff-- sons of late Byregowda and they were the mernblers of joint ilamily, which possessed eerl.ai1'1 moveablle ﬁnal .vl'i1'11.lj1'1o9l«'.a1ble p1'ope1*t:ies. Late B.Veeranna leaving behind his wife Lakshamma ldeferid'a.nt: his sons S.V.BaEalm'sh..11a. S.V.E\'fagaraj and S.Vl."N_ar.-:31dV1*a\"_§v:iei7ef';tle1:1t,s I to 3} and his daughiers Champaka Z lV"a11d Shg,-:1_ajaV__v-fdeferlidants 6 & 7]. It appears that item No.2 of plaint ~lf'_j:..KB'u_sehedu1eA'1.had been let" out to clefendzmt No.5 during the 4lii"e1:£:l1el'(alf late B.Ke111;:)egowd21. I)efer1cla11l'.s 8 to E0 are alleged to ?kg_ 6.: "

have purchased piaini 'A' schedule properties from defendants 1 to 3 du1'ing the peridency of suit.. 'l'1ie,i'eforC:. they are iingaieatied in the partition suit. On 24.01.1990. the properties the family rnembers were partitioned amongst: clel"endaxnts'_i'Vll' representing the branch of late I3.Vee':*«3__rii<1a .yGVowdaV,*"lat'e Bliempegowda and the plaintiil' under lre_giste1"ed llpjartitgion»_'deed;,V The house property described in itonii-No.11. of l'l3illsc1iedulell and a vacant. site desci*ibe:1_in iieirl schedule were allotted to the properties described in items 8; 2 amongst other properties wer5=i' detendants 1 to 3 under the The properties described partition deed dated 24.01.1990 = E,1lll()_l1t~sjll '«.i:'o the share of plain.t;ii'l'. Late B.Kei1ipe§§owda wasialhiglily qualified person and he was holding masters cieg:1'ee"i--n Agrieulttire Sciences and a bachelor degree in e1'1gi1ieeri1i.g.Vl'*1-ie ﬁxggés working as ar\Assoeiat,e Professor in the 'l"l,lI1i\7€1'S-it}/' of _A;gri(:tilt.u1'£il Sciences, Bangalore. He was not

-«ll.l'_f~,.«iiiaifried. Late B.Keinpegowda died on 20.08.1990. The service V'ben.eiits"...'which were payabie on the demise of late Bliempegowda d'ese1'ibed in plaint. 'D' sehediile.

/jg 6

5. The plaintiil has eoz1E.e1'1d(-:d that moveable properties described in pla.int 'C' schedule were held and left late B.Kempegowda.

6. it is the case of plaintiff that land bearing surxgeyv an extent of 3 acres 3 guntas. situate at «_Vl7.enicajtVa1a_ Yelahanka Hobli, Bangalore North: Tal1..1lk.__ of plaint 'A' scheduie as also in lj39/ ill' in an extent of 9 guntas. sitt1ai,e '1lOl\1V'E1,=AIiwC.lS(:1'ib€(Zl as item No.2 of plaint 'A' sehedliiile_.vv'e'1*.e in the partition deed dated 24.01."19QQ._aS for partition 01. above said ag_1ftc{1li:.t:ral"«lands-__in. View of the provisions of the Karnataka 3ﬂre\«*enti'oVi1"o'i7_ F~i:a"gnie11iai.ion and Consolidation of Holdings Act, I966"[i'or'vsl'1'ortV"~¥"li'e1g11ac2ntation Act'). It is the ease of v..PlE1ir1€ill27,'that'he is en-i'iii'.l_ed,t.o partition and separate possession of his Vshare in _sé:hedu1e properties and also on the demise of late BK-en1pegoxifda;' llpi.aia1tii'i' is erititled to separate possession of l it " a,house'propertj/iiiieseribed in item No} of plaint 'B' schedule and item No:2.. of olaint schedule. He is entitled to moveables l"l'deslez=ibed iriplaint. 'C' schedule and the service benefits described schedule. iv Jet ;9»=~-"*v"~C§»a« ' 7

7. Defendants i to 7 have filed 21 common wr1't.i:en st'a1'ement.. Defendams l. to '7 while admitting the relationship b__etwee.ri parties and also {he [)E1}'l'.ll.iO}1 of joint family propert'.ie.3:"-«drider registered p2irt.itioi'i deed dated 24.01.1990 have the properties described in items Nos. 1. of p"i'éi'i'i'i'i.:}'\§'ulsieheduilell are the self acquired properties of, 1a"'ie.. LBfV€€I'éii'11;[a;gQ\)V'(lﬂ, therefore. they were not included-,_in f)3rtit£.oiiﬂ_deed lldaiiedilli» 24.014990. Defendants 1 to 4. 6 8i0"}?l.:w'hVile zldmiti.{ng"i;hat items 1 81 2 of plaint. 'B' sehedole pioo1_}etuti'e§»VVlA\'2ir=e1fe allotted to late B.Kempegowda under a deed dated 24.01.1990"haven;tj;onlei;ideti--.li.i12i1: o"r'i*09l.O2.1990, it€I'1'1S 1 81 2 of plaint sehed'Li'le~..__"piropefii¢e-- fwere bequeathed by late B.Ke1'11pegowdua"iii',i'ei\<0o1;11'"-,_oiV'lV--deiendan1. {the mother of defendzmis l to"-3,'6.&--. 7)'-._by*=exeeui':in.g a will dated 09.02.1990. V..D.eiendv::1'1~l;:.ts::1 lo 4." have denied existence of moveable lprolperiies dese_fi"o_ed in plainiz 'C' schedule. in respect. of seirviee beh€i'i1;_sp}aini 'D' schedule, it is contended that late ..vB.Keriipegowda:'Llf-dd iiorilineiied defendant" No.3 to receive the eeryiee beneﬁts. 'I'1"1erefore. the plélillllff is not eiiiiiled to any of gm, C,gl\,_g2.i..U:<E.5»x ,

8. The subsequerit. pu1'cI"ia.s<-?1's [defr?.nclani.s 8 to 10) have adopted the written statement filed by de['er1dant.s 1 to 'l'f:"l""»and contended that deiendants 1 to 3 being the abs0lute~~.oyvii'ei19s items 1 & 2 of plaint. 'A' schedule properties have sold _ them [defendants 8 to 10} under a tsaiie 02.01.1995.

9. The learned trial Judge i'ran1e'du1;:h"e fo1l0Wir'ig'Aissues:g Issues:

1. Whether the plaintilff _prO\%es'VSChedu1e 'A' and 'C' p1'o;;e1*tiesare-the joint i'aiiiialjrv,vproperties of the p1a1n:1:1fi";ll§;d cle-teiicléirits' 1:'tc$'4r2..,,.i

2. W7l1et._heajVtjlzea._plaiﬁt?.iﬁ'«is* entitled to partition and separate p0.ssessi(5ia.___.O§"'ha11f share in 'A' and 'C' scthedtrle pr0p'r;:rt1--rf:s'?~* "

" V' & the «§)Vlai1it,iI'[' proves that the he is entitled

-Vtovthe:a_li.(;1l_a'1ent, of entlire 'B' schedule property to i" his share?' ' 'V Whethe'i' the plaintiff is eiiltitled to any relief in re':s.;j'ect. of '£3' schedule items as prayed for'? , 'kn, l'\3 . C.' Jar E0.

Whether the plaimifI'1's entitled to the direction prayed for as againsl. defendant. No.5'?

Whether the plaintiff is entitled to mesne J"

Whether defendants 8, 9 and 10 suit as against them suffe1*s:'frorh' rriis--j~1o'ir1de17 parties'?

Whether they further p1'o\rerV..LV'l1at. they-.2rre'v':bor1;;afide purchasers for Value ol'.'i§h'e"p§r'op%erfLy itehd"No.l of "A" schedule?

Whether2_'d'e'§er.1dsrrits 2:, 2:3 5"p:rd'\}'e._l:b:et item No.1 of 'A' "s'ev}1e.dj:J.1e thew-self--acquired properly o"f,_l.}1e fallhernvi;'del'ehd'a_I1'ls~' l to 3'? Whe"a:h_er vthey .h'11'=-t'v1.'1'e.r<orove that at the time of ; }}Ellflif.iOl1~.Ql'ljElﬁ}il:7 pro1)ert.ies on 24.01.1990. it was tl12r1'."i='ue2'1'i No.2 of 'A' schedule should be ._g;i.\V{e1<1'«1_o"v1he father of defendants 1 to 3 and they are the owners of the said A properpjf?

_ 1:.

Whether defe11dan*{.s l to 5 prove t;h-at B. 'ajﬁernpegcwvda bequeathed 'A' schedule property in l'avorz1- of defendant, No.4 under {he will dated 09.02.1990'?

3'\'j¥,z:> 10

12. What decree or order'?

10. During trial, the plaiiitiil' got. l'1iI'i1Sf:'II' examined documents Ex.P.I to E2x.P.7 were marked plaintiff. On behalf of defendants, de'{'e1ridant'i\§o';3 as DWI. One G.Aswaihaiah and G.C.Rarnaia.h, be attestors of will dated o9.o2.199ov:"xxrei~eV.on/2 all DW3. The will dated 09.02.. ixvand other documents were marked as E3x.l'3'.2'

11. The lea1*ned§--.,Vi;riat ._Juld'gei.on appreciation of evidence with reference to ""}3--leas:liii§s;. b'eai'i11g "'i'n~v-niirid legal position has answered iS.SL1CS 1. .iAnine'gat.i1Ie', issue No.11 in affirmative. The learned trial Jtidge lists"he1d'"'th'aL' issues '7 to 10 do not arise for CO11Sid€1'§?li.()1'1 an'd,_.d'rsi1'1issedvibe stiit. The learned trial Judge reo':orded: afinddingv~1.h.at. the plaintiff has failed to prove that i'iems;"1utSc.l2'~.ot7'V:p1.a_i11t 'A' schedule properties were joint family 13rof;erti¢:sA left out in the registered partition deed "V":iai,edA*-.24.Q~1*. due to restriction Contained in the Acid. The learned trial Judge has held that late «TV'E§',iien'ilpeg()\2r'd21 had execmeci a will dated 09.02.1990. N 11 bequeathing items 1. {S1 2 of piaint 'B' schedule properties in favour (if IV~de1'en.daiii.. The learned 1/rial Judge has plaintiff has failed to prove existence of inoveabies__d'e's'e¥:ib.edgiriA plaim. 'C' seheduie and he is not entitled for hi-s..inA the-«.. service beneﬁts of late E3.Kempego\vda;

schedule. 1 1

12. We have heard Sri L.S.VenkataierisEiVnai" eeunsel for plaintiff and Sri reeuznsei 'defendants 1 to 7 and Sri V.Vijayakumaij,_ defendants 8 to

10. We have been evidence and findings record

13. In vievr ef points that would arise for our determination are:

.;'v\f1s3.e,%ti1~.ei' th.e"p'i'a*ii'1tifi'has proved that items 1 81 2 of ":e':}L\,}::vS{3h.€C1Li1.€ were left out in the registered dated 24.01.1990 due to restriction 2 under the provisions of the I 1" 4-..'1+"1'a'gn1entati0£f: Act'?

AV§i.HWhet.h.er defendants "I to 7 have proved that late Bliempegovvda bequeathed items 1 8: 2 of plain: 8' W3» 5"'"'5£ ' lwllﬁeh were l.ei'i out in the pari.i1.ion deed dated 24.01.1990. 12 schedule p1'()pe1'i.ies in favour of IV-defeiidarit. under a regisiered will dz-iled 09.02.1990'?

3. Whether the learned trial Judge appreeia1,ed the evidence on record?

4. Whether the lriipugried }{udgn14ei1t.V_ Call.sl".VfQi'"jh interference'?

5. W11ai' order'?''

14. Our findings on the reasons thereon are as f011ews:- H' V .

Regarding Point "" "

ii, is aiie§ge.qj1V llproperties described in items 1 8: properties were not included in the partitioii'dee'd dai.e.d owirig to bar Contained under the provisions dii the.Vf*"i'ag:i1ei?i'1i21'iiion Act with an Lxnderstandirig __?;h.at saline Sl1{'§'ll.ivV'l)§", subsequeriiiy pa1'iiti0.11ed afiﬁei' the i?i'agn:ehiai,ieri Atﬂgis eiiher amended or repealed by a subsequent:

i'i0ti'f';e2iii_();-1~~-.f51<,_ er_dihaz'1ee. As on the date of suit, the 7='~F1'ag111er}taiiQ.i1 'Ag? had been repealed, there was no i111pC'dlII1€I'1l, 4t4o',b1'i11g El & 2 ()f}')l8.ii1l, A' seheduie properties 110 partition, é\}= <7 ;"\,.»-M9" "r"

I3

15. Defendants 1 to 4. 6 8:. 7 have contended that suit items 1 <3: 2 of plaini: 'A' schedule were the self acquired pfO})E¥1'€.i§jS'.Q!l"'l§1{.€ B.VeeraIma Gowda. i.herel"ore. they were left out in deed dated 24.0 E. 1990.

16. in order to appreciate the above ei1nte._rtt7ions;--l'1::tve_d:'gQr1e. through the registered partition "We do".

not find any recitals regarding 1)ost_pori'erI_1ezf1t ofllpamjtiovrl of items 1 & 2 of plaint 'A' to restrictions contained under tl1e_'}3ro\ris:i-olrisoii' Act. Even othewvise. we fi_ndl'». it is Proved that these propert__ies'~..V\li?ei§2:::_' properties of late B.Veerani1a:__Go_wdAa;l'aaid!fliedtttas----__iI'i -'possession of the same. The plaintiff has itoi L ii-1 elttée.

17. lnordeif to afipi.-_e:eiat.e: the bar pleaded by plaiitrtifﬁ we have 'r'e.i'erred_, to of the Fragmer1t'.at.ion Act, which provided for proeedtt:'_ee«oi" of land, which is likely to create fragment. Sectiori reads tlitis: ~ Restriction on partition of land A' VVl'1€I'€'. by decree, Si,ICC€SSiOI1 or otherwise two or more persons are entitled to shares l4 in an L.:n--divided E1gI'lCL1ll.l,ll'E1l land, and the _ land has to be partitioned among them._ such partition shail be effected so as not~to create a fragment. Where such parltitiona has to be effected Oth€I'\Afi.5B"

of Court, the Deputy Conimilssionéfa on the application any'-.persoI1_ entitled share in undivided such partition, Where such partition th__e Court or the (_3on*1'1riission.er, V-the following proced-upregj:§l1a~lll:be =a.do._pltfedl. Q l :{.a] ' 4' if.l: partition of property co~shares, it is found xtl'£1_lfI' .l'eo:sharei' is entitled to a in the land and cannot given that share without creating 'V ' he shall be compensated in money for that share. The amount of compensation shall be determined so far as practicable in accordance with the provisions of cpmpeiésatéjd umoﬁey.

15 Section 23 of Land Acquisition Act, 1894;

if, in effe(:ti1'1g a partiti01'1, it is that there is not enough'lar{d''fd1;'.'he'"' ' shares of all the c::0~.s}ha:es.

accordance wit"n- the' .provisiQ:9i.s. bf subwsection cowsl1arers.= agree among thexrzlselifes aslto. the particular" 'tC0~~sha19er 'tcQ--sharers who ShOL1l(L}"gE§E shtaerellbf and 11éi';t;el1'_. .. v:"9f i = V' '*-should be In the Avabseifiiztée"0f*-a11y"';sucEh agreement the C04'sharersa._i:'(>-- whom a share of land llcaﬁ belprijvided and those to Whom V m_Or1ey C0It1per1sat.ior1 should be given A. shal1"'b'eVc:h()se11 by lot in the manner ' AV 'prescribed;

the C0mpeI1satio'r1 shall be payable by each ee--sharer in proportion to the excess value of land he gets over the share of land legally due to him and such c.:0--sharer shall deposit the Pa ' c r\_,_.ﬁ'«.\/"-w i .5 ' . p 17 fragment, that method shall be followed in effecting partition.

3. Where a partition is effected in executions".

of a decree all questions relating to partition of the land and apportior1m_e-'ﬁt ""

compensation shall be decided-"by.:'::~t1fie..:< Court executing the Deputy Commissioner :4'V.elfectingﬁv_*v_iAthe it partition, as the accordance with thep....p;i'0Vi=S_ionsl "o.f_AAsut"9-- section (2).

find there was no ..to»s.effect division of agricultural Earad resulting in creation of fragmeiat.

€~3.._find frorn""1'ii'eV schedules to the registered partition that under 'A' schedule the properties °'--»'~which'y\ferev_all'oi.ted to the sons of late B.Veerar1r1a CrOVVCl& » {.de'fendant';~3_ 11 to 3), consists of three items of agricultural iands. described in 'C' schedule of the partition deed were to the share of the. plaintﬁl', which consists of one item of ""A.,_§Ztg'I'lC11lUJ.E'?;1l land in an extent of one acre and ten guritas. r 1'\..: $51 5*"

l8 'l'here'l'ore. the conte:1i.ion of pEaint.iiT that. there was bar for partition of items l 81 2 of plaiiii 'A' SCl}C'.dLll€ prope1't.ies._ to the restrictions contained under the provisions'«'.fVot;__: H F-'ragmentation Act cannot be accepted. "The i been effected in respect. oi' plaint division of properties item wise wjithsoui 4é::<§}niiag the parties had reaily treated il,€ITIS"l"'é(:Q. Q1" as joint family properties. i

19. The law is fairly__ a partition is admitted or pi"ovec'a_I pres--.uniip'tion"isV the property was divided and ai speifiscn Vfgtrriily 'property, in the exclusive po_ssessi.oi1"'.-grf.one 'ofsnthe rnembers alter the partition. is joint and is liabie to be p"éiiftiI:'io'ned, has to prove his case. 'the on hand. the pla.i1'1t.iE'l' has admitted that regist.ered dated 24.01.1990. does not contain any I'€Cil;;c'L~1_&":V'.V.&:3 nature of items i <3: 2 of plaint 'A' sc.hedule'properties. owing to restrictions contained under the V' pércylisicvris ol"the Fragn1ent,at.ior1 Act. The plaintiff has not proved that "'(3l\'?iS'i;()1"l of agricL1lt"Li17al l.ands/ properties described in plaint T 1A""s'(s}'jediile was postponed owing to resii'ic1,ions coiitaineci under E TX?' "

the pE'(.)ViSl()I'l.S of the Fi'e1g1:11.ei'1t.z1tioti Act. Even if the pE.i1'lll€S had the iHl',€t'Jl.iO1"1 to p&3.1'l.iil()l'} pl-airit. 'A' schedtile pr0pert.ies. t.hey could have taken recotirse to S€'CllOI1 8 of the Fra_gr:1entat.l0ifi Act. 'l'he1"c:t'0re. we hold that the plaii'11.iffl1zts failed to prove l 8: 2 of plalnt 'A' schedule properties were ~ partition deed dztted 24.01.1990. in V_l_(:w_('):{' tl*ié"'b';tif':v"

urider the p1'OVlSlOI'1S of the F1'agn1eiit.A;it:ic=_i'1 entitled to a share in the same. Ac:'¢_0rdzingl$f;v. it in negative.

Reszardingz Point No.2»

21. Before agixr§rt--tng Etc) S!.1Vb'f;!l'1f~SVSl.Ol;2Sil made by learned counsel i'oi=._ th._c-- ;:>Va1~'"t.tcas_v4"i<a:%ga1.rdi--v1g aéppre(:ia1t.ion of evidence and findings I'€CO1'C§~F;d by t.'E--"r.c"t.i*lal .'CQtn't.. it is necessary for us to state Certain fajc whicli :«1_l'é hot. in CllSp1.t[.f3. . :22: It in dispute that items I &. 2 of plaint 'B' schtédiflé._pi;t)g§é:'i°.t_ie~g§'{irate allotted to late I3.Kempeg0wda under 3, fe*<glstei'€C'. p£i:rt.l'ti"(i)n deed c.latt.ed 24~.O.l.1990. it is not in dispute 't'hat Elem: B.Ken1pegc)w<iei was 1,inmai'rie3ci: he was working as an V AssO'C_i2i.'te::_Proi'essi0n in the Ul'1lV€I'Sll1y of Agric:1,iltui~a.1 Sciences; he tl_ie:=«:l~oli'1 20.08.1990. ll. is not in dlSpLIl,t'? that late E3.Kei71pegQxvde1 L Kg (3),... X '''~~--§'"''"" 67' ' 5:

<:ir<:L1mstar1ees. which will nat.urally tend to make initial onus of proving the will and unless it is satisfactory discharged, the propounder of the will cannot. be heard to say that the will has been proved. The unregistered document and it. does not bear the V' the sigriatures of testator or att.esti:ng V II. The testator of the will namely highly educated person r1ot:Vl stable. The deferidants Elpaljl.-"'l"!'.{.)'V1'lf1'V€}§a1'I1lElii1g_ADvllVS.2 & 3 have not removed l' 'A the fsusgjietious» _ circumstances surrounding exeoifltioh' a¥11dlat:t.estat.ioIi of the will, which aecoitdirig plaintiff are as follows:--

a. The propourider IV~defendant -- Lakshamma has ilot" box. Defendant: No.3 (DWI) 'igz11oi*avrleelvabc)L1t. existence of the will as also i*ega.jrdirig the eontents of will.

4b'..VThe xtrillfwhlieh is said to be executed on O9.02.i99O did not ll..:'_eeve'lt'h.¢e light of the day till it was produced before the Court on 1At;'g.{)lét.2OO2, that too by eonfrontirig the signatures found on 9»? <:a§\/*--@'*"""' 23 The alleged E-1l.l,€Sl.('}1'S of will are highly ini.eresi'ed witnesses. [)W2-- G.ASW£1El1£1iE1l'1 is 21 Close ai.sso(riai'.e of defe11d2.ii'1i:s 1 to 4 and DW3mG.C.Ra1maial1 is none other them the i'zii.her--ir1i'l--2mr of defendant No. I .

It is moi in dispute ihai: late B.Kempegowda ihhighiyl * qualified person and {he wiii is alleged~io_4hav'e"l5ee'o;diiéified u an Advocate {not exai'111'r1ed before l.l1l€'.'CC}':L'1\1'~{:l. and blue sheet on which the 'eo'i'ii.eriis"efiwill é:vrlel~w{§yp.ewfitten'VJ' and ihe l'I1E1I'111€I' in which it. is a._l_le'gec}V._i.0 haV~e_been3 executed creates a doubt about g€I"i1,J.i'il1"1_(j3l"£.9Sif'Ol"l'l'l§3*'Will. Late B.Ker11pe§oti7d.;;il'dieddl5;:1_iI:1a_1"ried and the plaintiff is his legal l'161'i*V't,1I1Cl€'1" the Schedule to the Hindu 1 Succession A£:.i"..* 195.6 A~Tli'€"1VCl€lEI1Cl£1i1l'.S have noi alleged ihai ._i:hei'el'l'w2} any pé1".1'i;i.e.i.,.iEz-11' reason for laie B.Ke1'11pegowda to V".'di$l}'?..lTV1t'.i'1-.vE,'[h€._ﬁ'l?il11lll'l', who in the natural course would have s'Lieeeede'd:"iQ hiilsvesteiie. The evidence of DWS. 1 to 3 regarding ;)rep'e1i'e1i.i_()i1,_ l'f;'}A{lC'.Ci,1l.lO'I1 and 2-it.i.eSE:aEi0n of the will is highly Vr,liserepe!:1i.':.ar1d (:oniirz1di(:io1"y. 'i"he learned trial Judge. wiihoui, ..:'oesiIowirig his aiieriition 'in all these aspects has aeeepied the 24 genuineness of the will on me premise lllléilj the signatures of late Bliernpegowda on {he will have been admitted by the plairitifl' when the same were confronted to the plaintiff during cross-examir1ai.io.r1. Therefore, the fiiidings of the irial"rC'o;j1%ij' that defendants l to 4 have proved execution of t V' 09.02.1990 are perverse and cannot be"sust:ai1--i:ed..W

25. Sri 'l'.Sesl1agi1'i Rao, learned vCQ1iDS€l safjboelaring'; for defendarats 1 to 7 has made followings1ibniission.sﬂ§';e E. The plaintiff has v,.:s~i.gMnatureslAll of late B.Kempegowda V on i;l"1_e_:' ida-'ted'::_'09--;02.i990. The eonf1'ori[aitio.ri;; oil:f;E;he"--.:willl ld'uVrin;'§ C1'OSS"€X3.l'I1i1'18.ﬁO1'1 of plairitiffisperrrilssiljleAl€i1j1ﬂ~g»l- Order VIII Rule W4} c.p.c..

notwiilasiaifldingllthat the will was not produced ::1lv_<')'i3".~!.,¢__§ with l4l:1f:l'W'Fi.1¢_l_€_'11 siateinent. ll. 1 lliafcﬁlel' was sullering frorii renal failure and o11derggoir_ig: dialysis; all along, he was taken care of by [V AAdefer1d_a;ni. Therefore, late Bﬁempegowda had reasons to 0' "exe.euie the will in favour of lV--deferadant. 9 {X} 25 Ill. The evidence of DWs.l to 3 does not stiffer from any discrepancy either relating to preparation of will or regarding execution and attestation of will. IV, The circumstances alleged by the learned plaintiff cannot be called as a suspicious i' there is nothing unnatural about :*i~'l1"f: of i it execution and attestation of the delceased was a highly educated persoln.;:vp:'if.Vhe to" V L' bequeath the will, wipsdonil.-----off tesltat--orH cannot be questioned by the plaintiif.l* trial Judge was justified in l1v{)4l't':§V1'11_.'§__'§ 'wax/6 proved the will d.ated .ol9ft:2..l_1¥a9o'.« - .

26. Plavinghearld__thesie.ari1ed counsel for parties and after gone thV_i*o::.1gli' the recford__s_,_¢x.=ve proceed to examine the correctness of.ltll'1el"t'indi-ngst ofﬁttlie trial Court. with reference to the pleadings V and evidence, of the parties and settled principles of law onpthe p4roof"'voi' awill.

The law is fairiy well settled that proof of the will is

--«governed by the provisions of section 63 of the Indian Succession {xi i {:?L§'~"'""5""""'('Q"'"

Act, i925 and also under the provisions oi' sections 67 81 68 of the Indian Evidence Act. 1872.

28. The Supreme Court in the ease of H.i.»'?eMrik'ai;IehoV{pi'p_ Iyerzgcu" Vs. B.N.Thimmcy'amma and others. r'eporied...in. SC 443 has held:-

"[i8} What is the t;r»tzee__ legal._vpesit.ion'V'l' niatter of proof of wills :2 It-"'ig\x;e11 kr:o_wn-::11a'i, the proof of wills presents 'a reeu-r--ri.ng. topic for 'decisions in Courts and there _a'-_laiige of judicial pronouncements on The party propound1iig..auvv1'll_ or :i_)tll:€Ify'J1Se §ikVing"=21 V claim undea- a will is no~donEt:s;ee'l~:i_n__g'to provfjev a ciocument and, in deciding hovv5..it'_is to 4E3e'vvKL=:oved,Ewe must inevita'oly 1"efe1';t0_the'ii's1:eitti«ig)ry.:'p3:_ovis_ions which govern the proof Viol' doeuiz'ieiiAf:$..'li'»«.§:ec»?«E'i.;)r1s 67 and 68, Evidence Act are i'elel\ra11V1: for.t.h'i«>§'~~li'pL1rpose. Under 8. 67, if a doﬁinieiit isl"al.leged be signed by any person, the ' t.he person rnust be proved to be in and for proving such a handwriting ."'...i.1."'1"1l'(31'VS£~'.'r.V~.V'_:iilld 47 of the ACE: t.he opinions of experts and o'£.Vpe'i*é§o1'1s aequ2--ii11i,ed with the handwriting of the AA concerned are made relevant. Section 68 with the proof of the execution of the document h"§1*eep.zi1*ed by law to be ai.t.es1.ed: and it. provides that "KS1.1('.l'l a doeument shall not he usecl as evidence until one atitesting \vii:.ne:ss at least. has been Called for the ; é ml ( Hr': *~-- 5"~=--"'""'JT ' "

27

purpose of proving its execution. These provisior1s___ prescribe the requirernerits and the nature of proor§'f_':ll'r.. which must be satisfied by the party who relies....orr document in a Court of law. Similarly. Ss.

of the Indian Succession Act __are__ Section 59 provides that every pe:rson.,olA not being a minor, rnay dispose of his1pr'ope1'ty'_iAby'vxﬁll and the three illusiirat.ior1st Shseetionl what. is meant by the exp1'ess_ior1- 'awpershon. sound mind" in the CO1'1t€Xt.:J'~ﬁr'v€Ct_'it)Il_ that the testator shall sign or liliig. will or it shall be signecliby some"other_:pe:rson-irglylllfilis presence and by his4_Vd.ii'ee}tio.ny_ltlji.gll'sigi'iature or mark shall be ..rs,'iiallllV'ap'pear that it was intended"'thlelj-jebyl*r.a;i--g.§i've'el'feet"toi*the writing as a will. This that the will shall be attested I:_no.r:e'Jwitn.esses as prescribed. Thusthe as'*.tol\2vl"iethei* the will set up by the {>I.':Ol'pou_nder is A_Ap'rov_edvtc) be the last will of the testator S has tobe in the light of these provisions. Has the will'? Did he understand the effect of the dispositions in the Will'? Did he put, signature to the will knowing what it ~r::>ntailr'1ed? Stated broadly it is the decision of these S' "rpielstions which determines the nature of the finding Son the questions of the proof of wills. It would prirria faeie be true to say that the will has to be proved like any other cioeunient except as to the special {K}. ctgta 28 reoquirements of att'estatioi1 prescribed by S. 63 of the indian Succession Act. As in the case of proof..oi17_pI_ other documents so in the case of proof of wi~ll.co;_fit.__'i' y A' would be idle to except. proof with certainty. The test to be applied _w.ou_ld be'"t"h'e test of the satisfaction of the pr'u_derit..orIiirid in malt ers.

{l9} However, there is___oune_ iniportah.t.:v"feaVt3ure which distinguishes ' docurnents.

Unlike other docLii7iei1ts~i.'the'v*vwill from the death of the testator. it upropounded or produceg13...:vbe:t':otr:ei testator who has already it say whether it is his uriiii'oi'~.nEj:t; this'-aspecirriaturally introduces an in" the decision of the question .._as to ﬁdocument propounded is D1'0V€d tiol4WC"?vV the l'a_st:"'.wil and testament of the t;esteato'.i';-...Eve11 so, in dealing with the proof . ofwills thebourt will start on the same enquiry as in the th.e.:~proot' of documents. The propounder belctiiled upon to show by satisfactory evidence the will was signed by the testator, that the iestatoi' at the relevant; time was in a sound and disoosing state of mind. that he understood the inaiiure and effect of the dispositions and put his it sigr1atui'e to the doetiment of his own free will. Ordinarily when the evidence adduced in support of If '*'-'--9"""'""

égggm ' 3}.

test of the satisfact.ion of judicial coriscierace. It may be that the reference to judicial conscience in tl'1is'"""-- connection is a heritage from similar observatio_Vr1's..:"*<..""

made by ecclesiastical Courts in England 9' V exercised jurisdiction with reference to _ objection to the use o.E.' the word ;'consc«ieri.ce'.; context would. in our opinion, be 7 A academic, if not pedantic.-..__ The " 1c,est.r.''''inp'erely emphasizes that. in det.er111_i_rii'i1g_:.§V'lthe qtliestiiori t.o whether an instrunient..produ'c'edlVr_:i:elbre the 'Court is the last will of the deciding a solemn question._and be that it had been V3.},idl'y;.Vpt3.X6Ct;tt€€1 who is no longer alive." 'V 'V l l V' for deciding material questions "of 'fact ..:'i'Uli'l(_:p_ll9'1"'«arise in applications for probate or~«.iri* actions onlwills, no hard and fast or i'ules'=ean be laid down for the appreciation it may however. be stated generaliy ppijoplottnder of the will has to prove the due and 'Valid of the will and that if there are any suspicious"cireainstances surrounding the execution of the..--{aIi11 the propounder must remove the said Vs_t1s"picious 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 principies would always depend upon the pk: _ QJ»~g_..»~s_r °v~»-4Qo\ 32 faeis and crireunistanees of each case and on the r1ai.u1'e and quziliiiy ef the evidence adduced by i.he. parties. 11 is quite ime that as observed by l,O1'Cl.4Dll.'_! ~.' Pareq in Haifmes V. I--linkson. 50 Cal W N 1946 PC 156} " where .21 will is charged with su'E§:{..)li(?iQ_r.il' the rules erijoin 21 reasonable .sc:epi,i(:is_:ii.""i1'e§_i\. obclumte persistence in disbelief. 'l1_'l1ey...(1lefjv1iO1,.e1e1'r1eiIiCl».__ form the Judge. even in V.Ci1'CLlI'I;1'S'[:c;i11C("3S suspicion. a resolute and ll11.1_Ll'j"e~'_T'1€'l.1'2.;1l'l1)l¢ 'ir1vAeIfeclli:1Vllii'fy; He is never required to close l1_isi"1:t1Vir1:l_V to «¥._1'fl.'1'[l'1V!'§' 11. would sound pléllilLi4%l.ll'1.lT)':.lE.::A '[19:i.S<E3:),',_i.SQ, but" is nevertheless true thalt lilns'cliseeve1*i.1ig- even in such cases théeiljigdieiiall lalwleijis be open though Vigilf<13~T_1l,. £'ir)tz.s Lind (_:i1'c%.i,i£1:sp'eeL." In p21i"l3g1*é1'phf39 'i'.,.Wl1ai--c:ii"e'i;:tf1si.,;{i:.ee;s would be regarded as Si.1SpiC§i()L.1lS«..' l <':e'1171i'.1()i.;_ " precisely defined or eximiistixrctly €':n_uli1ier£1'Ee(:l. Tllai i1e1eviE.e1bly would be a.

- qt'1'es1.ib"1': of ..lfa1<:t. in eéicli ease." The lASu§";.3je11'IA:€-_C0uri in {lie case of Endu Bale Bose Vs. >'AAVll"v'lE1I1l.11(Al1;';L1_ Clj_1a.1'..c;lAi'<¢£~ill.3(>se, reported in AER 1982 SC £33. has held . the pr,oE)e1tor succeeds in removing the doubts arising from tl1el'sus.;3iAei()us (ti:-t.>z,z1'11sLaiicres, the Cm.1rE. would gra1ni, probate M ewiijiv i__§.7l1,I%1c-'-: will riiigliii be u1'11'1ai.u.1'ai aiid. r1'1igi'1E. iiave cut. t)fl'(wP10lly g\>i -~-~ i/'"""c£"' 33 or in part) near I'€lE1l,lC)l1S. Any and every circuinst'.anc,es is not a "suspicious" circuriistances. The circu1'11st2-ixices \>v<3Li}.i'.-. be '''suspicious'' when it is not normal or is not riormally expeé:-ted in a normal situation or is not expected of a normal peison. V"

29. The Supreme Court. in the KaI§ja'I1_.:

Smi;.Chhoi't' and otliers. reported. in Agra 1990 so 395mg 'i~.c=1¢i:=,9'*~. "

"20. it has been said too._l'reqiient:l3rVVto require repetition i,hat',----gi will the rnost. solemn documents known to"'l--?ii'W..A of the will cannot be called to deenfxvi/' to explain the ci1'cLimsj_ra::ce':3 in -i.t:°§Vj.:-..sVheigecuted. It is. t.herelore,.- .ess.eif;_t'ié1l._: --t_ha..ii trustiworthy and unin;pleléic"f;a.bl_e sri5l::1'd"lbe produced before the court to and aut.heni,ieit.y of the \-Villl'-2" tilt "iTiti":'3:f that the fact'.u1n of exectutioii vzilidity the will cannot be determined byAc:oi1sidve--:*--i:ig the evidence produced by the ' LV}Zi'1'.{)p0vloEVi'J,(Zl€l;:"v In order to judge the credibility of the truth iroin falsehood the co__urt_» confined only to their {testimony and den'i.ezirgour. it would be open to the court to consider A' (:i--rcurr1st.ances brought out in the evidence or which l 'g_llap'}§ea1* from the I1E¥.iLI}'€ and cont'eni;s of the documents itself. it would be also open to the court, to look into surrouiiding circunistances as well as inherent. J34 improbabilities of the case to 1*ezzel1. a proper eonclusicm on the rtattzre of the evidence aciducecf by the party.

21. In I--i.Ve11kataChal.a Iyengar Thimmajamma, [E959] Supp {1} SCR 426 :

sc 443) Gajendragadkar,J.. as_he._fLhen"\5}a--§§.;;V.flag, observed that although the 1IlOCiE':=__Of f not ordinarily differ from that ofptcxring Othertll document. nonetheless it 'i'~§E{'i~.,1_.'i1"€S.v.c3.l1' eAle'n1erlt.V"' "()1i: solemnity in the decision q_uest1l0:1} to whether the dOCt1n1€tT;:_{:."'p1'Opt)L1:Itde€i' apérovedtt the last will and testament Where there are suspl-;§i'o.t__,:s ﬂV'v1€'~:(V)'3;V}"l.,1S would be on the p1'0pV(§.t1r1c§ef_.t'0V expEa1i11_t;.11eni tb""[he satisfaction of thagg COL1l'AV'[':'.be'lj(§'1r§: --the.___wi_ll_' could be accepted as genuirie. «Whe1'Ve"vt'he_i*e.. zsuspieious circumstances. the C0u19th4--.w(;vz.1ld._:h1.a1:t§1'e3Z1iy expect that all legitimate su»spie1oL1s should be completely removed before the dc"1e.L1.nie'ntlVt'i.s& a.c(*epted as the last, will of the test:a.t.0r. _ have been reiterated in the 'subsequehjt; C-.eCisions of this Court in Rani Purnima Devi \r.»__'.Kurf122.1' Khagendra Nzt1'ayztr1 Dev, (1962) 3 SCR 195 5' .ggx3R E962 SC 55?) and Smt. lndu Bala Bose v.

Meinindra Chandra Base, [1982] 1 sec 20 {AIR 1982 ":33).*= I 35

30. The will is propoimded by del'endanl,s l to 4' I---Iowever. the sole beilelictiaiiy under will is the clefe1'1dan1. No.4. EJ(~3fe':1_da11i, No.4 has not stepped into the witness box lo substantiate:Vth.le--_§v%.ll propounded by her. Defe.1'1d3.1'1i:s l to 4 have not reasons for non--ex2m':inat.ioi1 of lV4del"enda'ni,, D'-_el'e11da-nisl ljto have no case that defendant No.4 sLil'£'e:s ifrool afayd'di,sa1bil_lly.llo. give evidence and that she is 11o1_j*a:_ eo11ip.et.en1'. This"

cireumsiarlee assumes sigi1il}L:e11"1c:e----i--:1:'vieW._ol' igﬁomilisle pleaded by lﬁedefendant (DWI) regai*dIng- e2:isf1.e:nce,ee.?e:,iSsody and eoritents of the will. DWI, 'iii .__his:'eVidei3::e Vadoi'.i.t:t,ed that before institution of the sg;if§dV,,.;:§.}'e .i11_1:i._t:f:.hE1d."(_jii1.3,SCd .21 legal notice dated 22.02.1991"lliollltielfeildeaiﬁe l"t.o'3; tli.ley'Vhad not caused any reply notice as he.w9a.s r'iot21.§V511*e.Vol'=e§&istence of will. l".)Wl. has deposed izliai he (:a1i1'1e'=in }')()S5g\',?Sé§iQI1 o*1',_1.ll1e will about one or o1'1e--and--a-- hall_Yea1r§'e1.ll;.e1' il1;3,1llu'1iionl'()1;the suit. Coi11raI"y to 'this, DW2~ 1-VlGfaeslfiwa_{l"1eilia_o}1;'" _£-'m 21t.l'.eé§lof of the will has deposed that in the I.1V1'€)1'1ii.l"ilof_ 1990. late l3.Ke1'11l>c?gow£l21 had Sent words th'rougl91'--.iihe'VSo':2s VQ.l:.V'l1lS elder b.ro€.l1er [defendants 1 to 3) to go to the hodse <>'1:"la'i.e'V E3.Ke,mpe,gowda as he w2.mt.ed to executed a will 'A V' 'a'1"idl EA)"/'__2 shall be a. wii.i'1eSS. F'?

36 Si. D\?V3--G.C.Ran12iiah. who is the i'ai.her--in--law of L defendant'. has deposed: iii the month of February 1.990. late Bﬁempegowda has sent words throtigh Ldefendant to house of late B.Ken'ipegowda at Yelahanka. as executed a will and that DW3 shall be a witness.

32. Thus. we find evidence of DWI: ilhalthe uwa's_'11ot'3wai9e__of existence of the will and h.e e,a1me,t.0.' know1ab--ou.t the éjboutlﬂ one or one~ahcl~a~hali' year from t:l"ie_'ti.e1te of ~institut1e:n of suit clearly indicates that DW3 has not _ given? "satiisfact"o1""y evidence either relating to existence of \vi'llt'0r..ltthe claté _\_é\_i.hieh he came in possession of the t*a'ili',3.l§W1::l1.as got the will from the bureauly(aln1.irzil'ij_of ll'-J ~c'ie_fen__da11't only after a period of one or o11e--and--21--1121lffi1on1.fi.he"£1_§1'1;e"'of institution of suit. Defendant:

No.4. t:he§_allege(i oi' the will has not been examined ;'bef0_1'e C-.Oeu=:.t. no evidence on record to indicate that late. B;.Ke1n;§egov§Li.;.1 after execution of the will had handed over thel"'*2V_iH"__to No.4. DVVl has deposed that he was not . V_preS€Hlf'\>lVl"}€I_1the {vill was executed and he does not know when ,1'-'tlrléi' where will was drafted and exeeuteci. DWi has ach'nitted lgehasvnoi. read the contents of the will: he doe 7 not know if r\}' 5.

37 the reeittals of the will are adverse to the interest, of the plamtiil. In the ci1*e.umsl.a11(.:es. it was lI1('.ui11bCI1l upon defendants 1.V-to 3 to examine defendant. No.4. who is the sole b€I'1€l'iC.ial'y unti-eo:[email protected] will and the alleged custodian of the will. The evidehee Clearly ciemonstrates that the will st.ate§l'to have 'loeerl:eisfee'utetl on 09.02.1990 had not seen light of the before the Court on 15.04.2002 th:éi*t..otoo.l'\néhen_lthel"~-;eigI'laturesl"0 found on the wall were COD;-fT.()I]led~"tiC--..'lthefl"-gjlailllllrlﬁvW'lZ1Cl1 he was Cross-examined on l5.04.20l02._t" 0

33. At this j1;.1:i(:t;ure,:_'Ait"lis'~l;rele'\zétht toivzétate, a mandatory duty was cast old1theeclefeiacleuits to oro;l_1:ee the will along with written stalte1n_ent.;lihute_»1;mel VIII Rule lA(-4) C.P.C.

34. Si"il"'7l'.Sesh'a_gil.ri =Rz71'o, leamed counsel appearing for '_rlel'e11daz'_l.tSl 1. to 2'.el":e1'1'i11:~.g to the provisions of Order V111 Rule A'1.A(4]' 'C.:I4.Cl.,:_woAu--Ed submit that the document was produced to COF1ll'}'Oll'1.i_'«tllléllf._$lgi1£liUI'€:S found on the will during eross~ exarn_in"at,ior.1 o'f"pla.intit't' which is Ebermissible under proviso to H :7for;je; Vlll rule MA} CBC.

38

35. On Ca1'eft21 1:)e1'usa1 of the provisions of Order VIII Rule 1A{-ft») C.P.C.. we find that. the dei'e1'iciant.s are required to p1--'"o..duee the document on which they rest their defence.

have propounded the will to deviate law of norn'3.'et1 succession. in other words. C1efgj{1d2111t.§3'h}3;'\fi11g plea of testamentary succession along with the Written statement. will '.2\__fhi.r.:Vhd'entii9e"'de'tenee"' V is based is not a document. r;'3Q111.di§\?ViU"1l"101d for the purpose of Cross~exainin.atie-ilj or his witnesses. The provisions of applicable to a document. which 'I1g1s'_'ed" .i_0.I"QOI1.i7I't;tI.ttiT1g the plaintiff or his witnesses. \_WlV"41Vé1V\dIe pleaded testamentary succession,z'p1etintiiff- .e_§'e1.'%\d}*"-Jfight to know the contents of the will. The deE'e.11d:§mt',s Shtitlld 1'tot have withheld the will to take the ****

33. ":::_i.~L¢ i}:aii'TF.y well settled that the will is to be proved in x"'"';e1*ms Ao,f4_seet;io1_if..E>A3 of the Indian Succession Act. 1925 and aiso * «d'.l':,»-Vitals:-rnis of.s__eetior1s 67 & es of the Indian Evidence Act, 1872. It ﬁshnet,» _,2_1 sitt1at.ie'11 wh.e1'e a person relying on the document can VA stieeeed by mere proof oi"sigr1at..Lires of the exeeutant. Therefore. {V C____ "z,_...,g'\«.fK»"'~£:£%\,-

39 submission of learned counsel for the Clefendanis camloi. be accepted.

37. The properties held by late B.Kempegowcla house within the limits of Yelahanka Town and a~._}/aeétni silte; 7 Defendants l to 4 had made applicati:ons"I'o;f._tITan;s5erlof However. the will was not provduced'e__b:efoi'e 'cO~neer'ned~.u aui'.horii'.ies. It is also an acimiiied tlzxeii"-tih21i' ii,e--ni No_".'_2 Volainl. 'A' ll schedule property had been_ lea'x~Q»i,m 'dj51.e1\Vf1a1"11loe. #0 lxun a touring talkies, which requires every year. The renewal of licence be Consent of the lessor and lessee. Even }i7l1_€::'l?§:?il1v!\VaS not processed into service.

38. The plai'niii'f I.lVl:':l"J€'f€I'iCl'c1I1I. had ciaimed death cum ijetiren1e1_%iubenefiis' account of death of Fate B.Keinpegowda irom "the E§_n.iy(-:ifsi';.y of Agric.1,iitui'aE Sciences, Bangalore. The HI- e1eife'1n.ete;e_i%i.lA his evidence has deposed thal he did not '1e.rnish""=eep_y'ef"ihe will. dated 09.02.1990 {E1x.D.1} before the é)'f'..AgriCLi1t.1.1ra§ Sciences, Bangalore. The Iliwdeferidant Ef1aes"':ile'posed ihai, he is emiiied io receive death cum retirement 3 ,l0enefits as he had been nonnnateci by laie B.Kemp:ﬁoWda. This r 41 her title to the properties on the basis of the will. The EV- clefendaxii had not done so for the reasons best knovm to l1eif_. The defendants have noi removed the suspicious eircun'1sian--e"e»oi?.rion production of the will dated 09.02.1990 at the ' time. As already stated the sole beneficiazfy. 1,1_ndeir will lizvalsenoiu ll examined before the "trial Court. The evi'dper1.e'eA~oi' DVV""1 [cieleiidahii No.3} does not contain any satisfaoioryA'explanatioﬁ_"<fo1f~:"1o11--= ' p1'0ClL1CI'.iO1'l. of the will for over a periodl:of__1'§._»_years:«

40. The Supreme Court Sirigh Vs. Smt.Chhoii and ot;}1er;S,l'repor£éld 'inQgi,IR A1990 sc.l.(;95, has l:1eld:~ . b--eei1 produced for V€l'y manylyearsldheﬁoitetihe' or' public au.ihoi'ities even though} 1dhere~ to produce it for El.'5S€I'f'.i1'igVl}'3.lVe1l17).l.lll'l7$ i:i_i.le,i;o the property. plaintiff wasijpl ll 1*.equi1*ed.__Vl: V to remove these suspicious l3}'l....l}l.)ll'cl()ii1g§ sal.isfacl.o'1y material on _ 'rec"ord';=..,_"'" .

D€lf€Hd£1i1li3:..'l'l.O 4 have examined DWS 2 82 3 to prove due ll_lpi'_-«.e;ce::otioi1 a.f1dj.atiesi,a1:ion of the will dated 09.02.1990 marked as E ii is 191.01", in dispute that late Bﬁempegowda was a highly " - oali'i"ied* oerson and he was wc)rk:'1'1'f as an Associate Professor in _ _ i 5 0 the l52--iiversi£.y ofAgi*ic.:uli.1.11'al Scierirres. Bangalore. N < 42

42. Before 21d\»'ei'ii11_s_§ {.0 21ppre(tiaii0n of evicienee of DWs.1 to 3. ii is necessary for us to examii'1e the nature aiicf eoiiieiits of Ex.D.1. The will as per Ex.D.1 is a i.ypewrii,t:en doeumeriy The Coiiteriis of first two pages of the will are typewritten on and obverse sides oFsta11'1p paper worth Rs.5/-- * of third page are typewritten. on .21 blue sheep' ll have been drafted and prepared by an Moheiri, whose office is situate R.K.Puram, Bangalere - 560009. 'V l 2 l l

43. In the Cl'FCl1H1Si3.I1C€Si ts comprehend as to why the testator arid theilfidveeaﬁe to prepare first two pages i:h«t'v.rilll'lc:i';- and the corieluclirig part of the will on paper worth of Rs.5/A bears an ericlorserrientllthfgit ifjwas. piirchased by late B.Kempegow(:la on _08.02. pm '[31',f?Mi()L.1S day of E:'){E3(tE1liOI1 of the will. There is._r1n'evi_cie:r_ice. Q1i*~.x'eeo1'd to prove that late Blienipegowda had pu1'elhas.e_(1« {hell"s.i,airip'llpaper on 08.02.1990. This was necessary in View 0f"ihe .fé1'et-1 late Bliempegowda was 1101 keeping good " '::":f'I'E3__'cl.ll'lCl'1 and was suffering from renal failure and undergoing xv-M '* 43 44, DW2. in his Cross-exarninaLion has deposed that late B.Kempegowda had given the stamp paper by removing r:i.'*--.l'i*orn his shirt pocket. Conlraxy to this. DW3 has reading the draft 0]' the will, late Bﬁempegowda stamp paper. Thus, version of DWs. 2 8:' as.t&o'..wh:enl'and whefe the stamp paper was purchased and how sta1n.p*pa«pe;:"was._ made available to the Adxroeate/sefibe anLl._how was' prepared is inconsistent and---eont1*adiete1y.V"»_

45. From the content olfVy\}ilVl.VV that several recitals of the will afe::;tedL1ri¢iant"anel' sjusjjieirsnzus. in page No.1 of the will it is vl\§o.4§ was very affectionate to the tesl.a€o::;VV_ De*{"e11VcllV.a'1';itV.Nc;.{l%"had __proLeeted the testator during his childhood, eifenon "execution of the will she was protecting and she 'was'V--_'t'.l'le_ ealy p1'e'teClor of1.esLato1'. Therefore, :_te's11Valor,':b€Cl:i.1eat_hed p1'Ope1'i.i€S held by him to defendant l\VTo_.V4 exee_a'Liar:g"l".l1_e will as per E1x.D..1. In page No.2 of the will {on stamp paper}, again it is stated that the AA"VVV'properties in the schedule to the will should go to " jv»-dt:_fé,-nd21ni'. who shall enjoy {he same as the absolute owner. reiterated that defendani. No.4 shall be the absolute xe.,,6x "~'~~'£I\ 44 owner of @*opert.ies bequeat:hed under the will. Having i'eiterated bequeath in favottr of lV~del'enclant[ for two t'.imes. it is e1Is(3'"stz1t'.ed that the sons of elder brother of the t.est.ato1~ or b1*ot,hei* of testaior or the relatives 01' the testator belonging to the community of the testator's«halll.l«h.gy}§Vr;lo_ of right or title or interest over the })I'O.l:3'(':"'I'lt::I'!'3'Sz'be(%.:;tzes1'Elﬁ1€Cln the will. It. is also stated in page will llthellltestatorll' had affixed his signatures lreaclingl the contents of the will. The testator had 'in the presence of the witnesses. \vhouh2:1Lve_ l l signatures of J[lf1€.§11'€wf(3-1_.lI}fl at the bottom of page Nos} 81 2 and bottom') of will. alleged signatures of the attestors arelouncl -:_1i'Ap_agel~~'lNo.3. Therefore, recitals in the will that t.l1e.};test"a.t.or l'iadl:at.tested the will in the presence of the Wi_t.riesses. vsirio at'test'ed the will found in the middle of page l\lo.2.eVfei1 Ab-efe.rle Completion ol' execution and attestation of "---'»will would Ciieate. a reasonable suspicion as to whether the will was 1'eally..(l1*'afted by an Advoeaie. that too on the iristruettion ..lgit»'ei"1nl:y_ late" B.Kernpegowda., who was 21 highly qualified person 9,3, 5 6'/t,.+.t-~.e,€.s~ 45 and wc)i"i<ing as an ASS()C',iaE'.€ Proi'essor in the University of AgriculI.1.1rai Sciences. Bariggaiore. These recitals would g.i"'-.r.e an impression the contents of will were 1,ypewi~ii'.t.en after trie»iesi~aior and attesting wit had affixed their signatures ~:..o"i.l1e_W£1l'; T. ' H

47. We also find from the dese1'ipt.io§'i Mofllrhe 'p1'o;perii4esVviridthe. will, there is reference not only to the hr-e§ji'si.ered lpai*1iti=3n":_'d'eed~, dated 24.0.1 . .1990 but also to page'ni,{inbers and'Vvool_uri2VeVunu'rnber'lV in which the contents vo'i.',_. regi.ste1"ed: llf5artition"'-Adeed dated 24.01.1990 were entered Si,1b~Registrar at Yelahanka. We are.Vnieik--ing, 'tzovlihese contents in View of the fact. 1Vi_'.":;l3'iV30 was registered on the same 1 evideiliee on record that late B.KeIr1pego\i?dai belfo.-re'§i_i*irig_._insi'.i-uctions to prepare Ex.D.1 had obtained }3a11~i:i(t:iillars!' -rill"._regi~st'.e1'ed pariitiori deed such as documerii. i1uI1'1be1',V'}3._a.ge 1'1U_II1bCl"S and volume mimber in which the'(:oriiis'eiii.si:'ofHp;ia*i.il'io11 deed [were entered in the Office of the S1,1'Vnl)jRfV§'(£'.§iV$'tI"vvE_v{'i>7r_E'1i". §i'::iéi.iiaizil;a1. I1. is obvious that it was not possible i V" ._to give' these par.i.iei:iars unless one had obtained the original of reg;Vist.ered .p§iA::t'.i.tV,i4or1 deed dated. 24.01.. £990 or 21 certified copy of Vi.h'es»xs'm':1e. 'Fhe evidemte in proof of this loci" is lacking. This

-5/\,/w~C£,2-~-* 46 assumes significtaliee in View of the admitted fact that late Biieinpegowda was not ha.le and healthy: he was undergoing dialysis. The will dated 09.02.1990 is not a registered docugnent. Neither the testator nor the attestors had mentioned execution of the will beneath their Signatures _ ensure that the will came into existence on is stated to have been drafted and hi Mohan. Advocate whose office is' -sitst1atie._a1 No,.'8l; S.C.Road. R.K.Purarn, Baltgafore been examined before the Court. notassligned any reasons for non~exarnination of

48. DWQLQ,_A;shwatl:a'aiala,li'n_his 'examinationwinwchief by way of affidavit has dep_osevdllthat.l month of February 1990, late Bliem. etioxivtla had 'sent. words throtwh the sons of his elder 'L'«: '. .' an brother. to 3} that he should to go the house of late B.Ke'ir."1pegVow'cl;i'atYelahalllsza, as he wanted to execute a will and that DW2 sh.ot1id<*lbe a witness for the same. ~ DW3-lC}:C.Ran1aiah, who is the l"a.ther--in-law of defendant 0' E\i_o¢_1,'"._ih''hi.s examinationmirmélaief has deposed that in the month 00 Febrtiary E990. late Bﬁeinpegowda had sent wortf through ' C' ..u\_€: my 47 defendant No.1 to go to Yelahanka to the house of late B.Ke1i1pegowda, as he wai'1t.ed to execL1tLe a will and tha.t~--___I)W3 should be a witness to the same.

50. During eross»examination. DW2 has admi1:,1_jé'd.,Vt--h'at_ 'Late, Blienipegowda had sent words th1'oai§11 brother {defendants i to 31 4dVt;or*.he Q' ofdjlddatjejﬂ Blienapegowda. During crossveX2iiniiia't.ioI1. admitted that he was suminoned by' I--det;enVda11t (son, tnwlaw of DW3}.

51. Contrary we vevizdence of defendant No.3 {€3'(E1IIVV1[vi11'8tZt"'a;;-vi»_DV}5it) _he._'has pieaded his ignorance about existence of*the_Wi11 _tiVlQ1i;..VVt1S"i:Q>Lh'Ed in t.he bureau talmirah} of his mother tdefendaritt No.-4«)".ai1d""*ic1kvas handed over to him by his mother, j,;uhi(;i1 2icLtoi*di'1'ig [SW1 happened after a period of '1 1/2 :,f'}x/eaifs t'i9ot:1 the date otsttii. DWI has categorically admitted that he'd_idIT_1o't;. to legal notice dated 22.02.1991, as he was ' " . not awake of tii'it§':f'XiS'C€I1C€ of the will. it AA find that the evidence of DWS. 2 81 .3 that on the 4CJ;1rZ.L1".C..vC');F».f§§'((3(',1,1E'iOI1 of the will, testatoi" had secured them to his ' __ .§-L 1--"-~&,.4f*» 48 house by sendirlg words tl11'or:g_;§h c.'le§"e1'1cla1'1t.s l to 3 is ialse. DW2 has deposed that at the relevant. time. he was the Vice«l?'1*e-:~:__i_der1t of Yelahanka Town Municipal Council and he reached of late I-3.Kempegowda on the date of execution person by name Jayaramaiah was p1'eseht'_ Ramaiah reached the house of late I' they were taken by late B.Ken1;)egov_fcirt_ in "ear to "of an» V Advocate by name M.Rama '

53. Contrary to this. 'deposed that late B.Kempegowda had.--aer1.t. ..l-defehdarrt. to go to the house of late "--Ye«l_aha'nka. Therefore, DW3 reached the laterMB'..l7§e«:npego\>vda, by the time he reached the house of_ la_t.e Vl3«.llre'1:1:p'e.goufda, DW2«Ashwathaiah and a person by I'1E1II'l'€ V'.l'.N.J21yara'1h, were present along with lat;e 295;KB}IIp:§3§0\Md&it__OI} t:heHs~:ame day. late Bﬁempeggowda took them to the"Qff1ce'or'«Rama Mohan, Advocate at S.C.Road, Bangalore. There.is.'no' lle';vid'ei;ice on record that said T.N.Jayararn had V "acquairrt,_ance'wi.i*h late Blierrlpegowda and he was known to the l' :I"a_hi'ily of duefehdants 1 to 4.

y'\j .

54. D'N2-G.As11wat.haiah has deposed that after reaching the Office of Rama Mohan. Advocate. late Bliempegowda req_u est'ed the Advocate to prepare a draft will and ir1st,ruet;ed 11141':.t:.:"i'_t't;}1€ contents of the wit}. The said Advocate noted the ir1S,_t,'1':'L1(3"['4_irCVV)h.S * prepared a draft and read over the same .t.0_the t:es'tat.<:5_t;.a'i*1'd 2 81 3. After u1e1de1'staI1ding the C0ie1t.e1':§tsA.';0f3.t1ieF' Bliempegowda requested the Advd_C'ate tohprepare' will. The said advocate prepared 0f..\éxri1:1t_a_A1Ar1dBread over the COI11'.€1'11S to the testatof Bliempegowda went through the eontsents fcIr1t1v--.VgA1a1:1_d"t.l'1e document in the presence of V'

55. Duriﬁg __L)W2 has admitted that. neither the Advocatettiot' had requested DW2 to affix his sig11aé§t1i*eS On t,he_v_sVt'.Va11*1}§ paper {pages 1 81 2 of the will). DW2 has:t10ta_dtw'2'it:tt?1':_ti'1.e date beneath his signature on E)x.D.l. DW2 has does not remember the name of the Agtvocateg. who ~p'i'epa1'ed the will. However. in eXan1Inat.i0ngin«~ _. .. DW2'=----has identified the signature of M.Rama Moharl, ;.3Xd}}'oejate,.«A'«\x¢*l'1o is stated to have drafted and prepared the will as If*7'rom the exami1'1at.i0I1win»chief of DWA by way of 4x,~f,,&*-t, x.,~..Q££' 50 affic.favii. we find that he has not stated that the Advocate Rama Mohem had signed the will in his preserme. I---Iowever. I-.€1,11'ing er0ss~examinati0n. DW2 has deposed that the said Adv<jeaL"e:.Vj1.i'a,d aiso affixed his sEgnatu1~e to the will.

56. DW3--G.C.Ramaiah has deposed : théi '&f'~~%'-'F: '_r'€--éi<i1=1ir1§' 'V chambers of Rama Mohan. A.::;¥Voea1,e=, '1'3.{',(3 eBf«I{eﬁ1peg°s3W'da"'ve instmeted the advocate the 111a11111'e'V1'*'e».:1;:1.'V'1'which to be d1'aft€d: the Said AdV0C?3T:€4"'V~.i00}_§V.QQ.iV1j{ef?7._F!ev{,i.0I1s Jvthereafter prepared a draft will; after of draft will, late B.Kempeg0eedé¢ to prepare the original of =31' original of wili were once agz1ir}.V_ re-_a1:i and DWSQ & 3; late B.Kempegowd£1--eafi.er" 1..En.4i;;1.,.1L:'g}": the COHIZGIIES of the will affixed his signa§§ﬁi'es to tlicewilyl inithe presence of DWs.2 & 3. ~ :VD»1.1;'in,g'<::*0.eS--:eXami1'1ati0n. DW3 hals deposed after the draft of iate Bﬁempegowda brought. the stamp paper.

x1')dW'3 has deposed that he does no'; remember who had 'r;-15fcJL1ug"!3t.' 'the stamp paper. A5 aiready stated. we find entire will Ki" eg'_(_,g/v_..».~»,C£E:r~« ' 51 was not typewritten on stamp paper: only two pages i.e.. the front and obverse are of stamp paper worth Rs.5/M are used to prepare pages 1 8: 2 of the wit}. The endorsement made on the the stamp paper shows the name of late £3.Keinpego'wd.a'as"ih"e V' purchaser of stamp paper and the date..o{7 purchase it i'sVLsho'.xfn as 08.02.1990.

57. Thus. we find the evidence.'-.oi' 3':._'i'*egarding'-it purchase of stamp paper and person "who had made avaiiabie the stamp paper discrepant.

This discrepancy 1oorri5_.1arge;' borne by the stamp. VV:'Ef.Kempegowda had purchased tiie 1990 i.e., on the previous day of executiori of stated, there are suspicious and redundant.i'::ecitaisv._ iri, will. These recitals look rather uriL1sL1ai_§pin "the xtriewi of evidence oi' DWs.2 & 3 that iate ,a'~..hig1'i1y qualified person had instructed the Adiroeate Vto.:V'psrepa~1"e_}~ a draft wit} and it was prepared by an it doubttu} that Eate B.Kempegowda had given minute detajsis to the registered number of partition deed dated "2-101*..t.990,°page I1E,EII1b€.'I'S and volume mrmber of registers in 52 which the eoritenis of pariition deed dated 24.01.1990 were entered in office of the SubvRegistre1r at Yelahzmka.

58. We also find from examination of the will the.Sigria'ti;trels*10f' . the sovealled attesting witnesses are i'0Vu»i'V1cbl agaiifisl---.£ype'=wri:1tei;1'"' numericals i «S: 2. However. sigi1ai.u1*e ol'DWl3--1:Rama.iaih against numerical 'three, wrilien injiulg. ll laJ__ellB.KeHVilpeg;f()wde: h2id_l> taken three witnesses. viz and G.C.Ramaiah for the pL:rpoe--e.Tmf iilcl-Aoks rather improbable that 0nly__tw0 weEe'viybewi*iti:e11 below the caption "\vitr1esses?f ' I'1!,.ili'i'€f'l:.C'V'cV.1':l tlhifieellwasijwritteri in ink. The signature of D"W3--f__ Vl:(')LEI'lV'('}' i1Li;Iie1"ieal three gives an in1pi'essioz1l*thai; 'he'w>1;=, _» ai<i_.2tU_.Tes--1._01" in case of need. The presence of signature ofD'N3l"*i11.l"1':Al1eVhlwill is a suspicious circumstance. which not beeijilllrem':3\!ed by the defendzmts. This was V'::,eee'ssl.a_'inj/ the fact. that DW3 is none other than the fathier--i:i_--1aw= ei'f..igde'fei1dar1.t. V59. DW3--v-Rameiiah has deposed that he had seen the will after ll""l:§1/2VL"yea.rs after execution of Ex.D.l when his so11~i1e1~law [1- r:i'eefer:dla£1--*Jl enquired abcéul. exeeiltiori. of the will. The eoriduci of T 1j:l1i'S»v.Wi.fI1€SS is LlI}I'i£1{L11'€ll. daught.er of DW3 was given in k ,.'§__ .,g§"L we 53 marriage to l~dei'enda'nt. If an irnportarit event. like disposition of properties had taken place in the family of late Blienipegoxvda, the normal conduct of DW3 would have been to inform h_is= law the details about the disposition of properties' 9' Kenipegowda if not during lifetime oi',B»;K.empegowda; at._l_ieas.t after the death of B.Kernpeg0wda on 20.08. 9' DW3 did not bother to inforni_,:i.}i.e sarrieto' l-;defe'i'1;d'ant;l:"Ihis"V 9 conduct. of DW3 is not norinai. of.lI)'V'J3Athat he had seen the will after 11/2 years of the will is also incoherent. who was the Custodian of w1'_1.l, seen Ex.D.l. This evidence DWE. that he came to know about existence got' one or one--a:3.d--a--half year from the4§§flaVte.of ins'tit_tit,lio1i of the suit. .iitl.E1S':A.'C1vC*§.)0S€Cl that he did not see Ex..D.1 after seen l33x.D.1 in the Court. DW2 has 9Vdeposed"'----tha't'he'l did not inform execution of the will to the 0' :''.vijlai.r1tiff_or "others. The Conduct of DW2 is rather unnatural. If DW2 to inform. the execution of will to the plaintiff and attested the will executed on 09.02.1990, one would 54 deferidaiits. if not dt.11'ii'1_;;' the lifetime of late B.Ke1'11pegowda, at least after the death of late B.Ken'ipegowda, in any event---___Soon after the eor11meiice1iiei":t': of litigation between parties. admitted that he had €1CC}L1'c'1iI1ta11(',€ with late V' the father of defendants 1 to 3 and he it has admitted that he came to kno\v;"=ab:o_'ui,'tV Advocate on the date of exeetatioii._vot'~r..thedttrtldtx. find"

from the examination~m.~ch_ief of he the signature of the Advocate {E'X--.t')j,.l the wit}. If the Advocate was not kiiown to:.t'h'e' the execution of will, it is diffic'u1_t..t:o cofi_ipreheriLi_V.as.__tojhovvuhe could identify the signature of Advocate Jon ' the will h per Ex. D. Mg).

61. DW2 has_ depose_d the draft wit} was prepared by the Advoeat.e. it i'eai:1 overvto late E3.Kempegowda and DWs.2 «'3; a1"so depo?sedaI'ter the original of wit} was prepared, the'~t;h;e contents of original of will and thereafter to the will. However, during cross-

~ t.t'_f:ex_aminatioi1,.V 'AEDW2 has deposed that he Came to know that Eate 4'~._:V'B..Keh1pe§o\vda had bequeathed his properties to his sisterwin~ f"1:«.i_.v;?. which is in the riatzure of hearsay evidence. This version 55 belies his evidence that he had read the will be.I.'oi'e attesting the will.

62. DW2 has admit.t.ed that he was eoitiiak with late Gowda. DW2 had attested exeCu.ti01e1 01' the wilt. wouid expect DW2 to reveal the same t0~~t.he g§_';'T.4tt;.,;.j it"

Wiii at Eeast after the commencement 0_I."i,it.igéttei~On bet'v.re'enVpVéu:ties:

started during the year 1991.

In the eXarI1inati01i--iri_.-e1'iiel', hats de}§os.ed_.that after the will was prepared, the e0h'te1e1ttS'--Qfftiie read over once again and Eate B.Kem'peg0wdVé1V'went"ih:ivQug1i.th'e Contents oi" the will and t1'1e_'u}i1*ese1'iee of DWs.2 8: 3 and thereafter DV-I2' to the will. Thereafter. DW3 affixed his _sigIiatL21*e' t9 the *-.._vi}'I~~;"

In-'.,.,t:1'Jfif"'ETXé3n1iI1a1tt3'i*£:i'i1--(31]ielﬁ, DW3 has deposed after the e0'r'it.er'ii,&s_'Voii"\i¢ei'ej..i',yped, they were read over to the testator t"*-«and the B.Ken1peg0wda1 went through the contents ~ t.t'_:':v.0i'_ the wiil 'anti affixeci his signature to the wit}. Thereafter, DW2 e1t'|'i;t'.edV signature to the will. Lastly. DW3 a.I:'ﬁxed his sig11atu.re t.()h;t.he'}wi1I. R' if ,.;",x 1 mi"

2. 56

64. At this stage. it 1'eleva1'1t. to refer to the contents of the Will--£3x.D. 1. As per the evidence of above witnesses, it is clear that they have aittxed their signatures after the testator signature to the wilt. We find signatures of the tes.t.attor~.or1=l.a1l_the"

three pages of the will. During further exfaminattorieainfchief.'v.{§Vl{2j 8: 3 have also identified the signatures ofﬂthe testcatdor. ifozurid 'in page Nos] 8: 2 of the will as per N_onedof. these tmfitnesses has deposed that late htsvvdsigunature to first page of the will, so also the will. This wouid create suspie'iordiA;ralaont-_ View of the fact that page No.3. \t}tll."\trithout. which the will would havczfjheeix annexure to the will typewritten on ustaérnp «if the entire evidence of DWs.2 & 3 is accepted on V_its..{;:tce"~val'ne, there is no proof that testator I-ha.d=aI'fiXed his s'ig1'1at.ures""t.o the first page so also second page of the"12gridl_t.c\NevVare ~v:9ei7e1*r.ing to these discrepancies. bearing in mind vE*='that; 'nias a highly qualified person and he was ~ .l._j'j.-working as"an'1.Associate Professor in the University of Agricultural Sciences" Bangalore. ll" the testator wanted to execute a will, he not have chosen to have a part of the will typewritten on a st3.i11.p paper and ttoiittltidingg part on a blue sheet. This was more 58 beqL1ea1i':lied properties would c1'eate suspicion as to Whei.l1er these recitals had ﬂown from the mind of the testator.

66. Thus. on reAapp1'eCi£:1'LioI1 of entire eviderlce, ' Contents of the will and the CiI'CLimstaI'1C€S~L1_I'l6l<31T'.'ll\l'l;ll'(ll'lV:V 'A ll alleged to have been executed. We safe defendams l to 4. 6 61 7 l]aV'Cl_'V:lla1.il€d alto Afs'ii--spici0us'V.i' circumstances surroundingﬁthe have failed to prove the exeeutioh. the will.

67. Sri T.Seshagii'i,:Ra,Q, leslrliiediicolufiseillfbrideiendants 1. to 5». 6 8: 7' would :_. Jihad admitted the signatures {Jill thellvevidence of [)Ws.2 8: 3 does not suffer fromlany di.sci*e;jlaneiies;..-their evidence about execution and attesiation°of the ':2v1li. is~~--'consis1:er1t. In the circumstances. 2v1'l(J11f€XEllll'iflE1.§l():1} of theV--lV;deEe1i1d211'1t as also l.l']€" Advocate. who di*aIte.dil"i;}1e*vsiiil;"doe--s not distract the credibility of evidence of learned counsel for defendants I to 7 would justiﬁll tlhelfiiid-iriggs recorded by the trial Court. 6_8';«:" .VIri"'0rder to appreciate this submission,-it is necessary to 6" .s_{.s;i:e i;;l:iat. proof of will is governed by the provisions of section 63 4 AL ¢\;a~ *%«~--e?"""

59

of the Indian Succession Act. 1925 and also under the provisions of sections 67 8: 68 of ihe Indian Evidence Act. 1872.

69. At this juncture. we find from the records signatures on the will. marked as Ex.D.l was confr'ontede:lt'ol "

plaintiff. During cross~examination of-iplai.ntii}'ﬁ. will v4.l_wa5;, brought to light, for the first time. The dociiinent read over to the witness {PWi). Assuniisng that Vadiniis-sio:n"1n.ad:e by * it the plaintiff has evidentiary. va1'ue.._---H sL:.cli--._.adn1is'sion"does not amount to proof of execution of w_ilfi;--.i}n l"teV:rm..s=. of provisions of section 63 of the indi._anV__Suec'essiofi also under the provisions o'ii'""slecii';ions "8; the'indian Evidence Act. 1872. The eonduct',o'fl' in withholding the will even after a period loiﬂllvi yl'e-are 'l'i'oi}.1 the date of filing the suit and Vt1rodu<:ivrig,i,l1e will afterV_co;?.iror1i.in.g the signatures found on the \iri.i;1 {note .,tVl1€_COH'lf'3lI"i§S of doeiinient) to the plaintiff is yet another SuSpiCi()i;3.S cire.ii*:ns:tanee regarding the conduct of defendants 1 to

4.,j who lhadi.xpi'o.poLinded the will as per Ex.D.l. The written was filed on 13.09.1994 i.e., after a period of 21/2 years f_ro_rrig_ltli*e--7date of their appearance before the trial Court. When 1 E0 4 had filed written staiement. setting up special 60 plea oi' Eestaimeritary succession. the plaintiff had eveiy right to know abotit the existence and contents of Ex.D.1, soon.___after written statement was filed. From the evidence of the mode adopted by learned counsel for V' Confrontirlg sigriattu'es found on the \Vit~}"'t'O..th€ ind accordance with the provisions of setetiioiﬁdii.

Evidence Act, 1872. In the first tofkdt the wilt marked as EX.D.1. ;__'i"he "1'1dotAAcVoi"1tair1 any previous statement made of Ex.D.l were not made known to PVJ to it it

70. The defen.dei'1?t_s1A::,:_t1t:'-:ﬂt.(3. the will for over a period 0%' »ti*ieﬁ'v».rr;--;ie1i staternent. was filed have fortified the date on which the will came into existgeinre and"ci.;V_stody'oi" the will till it was produced before V'i:heV'dC0tirt 5t;U4V.2O02. In the discussion made supra, we have held" ighatprsi%1s§os§g¢>;.~ Order VIII Rule 1A(4~} cpc does not appiy 'ditto the t""d0ct'irrieiit on which the entire defence is founded.

"tTiiei'c.t'Qt*e. st--1bm.ission of learned counsel for defendants cannot 5?

V' 1 2\z * --57"" ' 61 ',{'he learned eotmsel for the defendants would submit that deferadarit No.4 was looking after the testator after he hadfallen ill. in faeig the testatoi' and delendaiits l to 4 were lixririgl Tlierefore. there is nothing unnatural about the" iiiatiire of bequeath.

716 We find from the Contents of the \ir'i.l__l lsoﬁalsoljgleadiingsithat', the testator was living in item No. l lplairitl 'B'. scheiddlielijrolperiiy it till his death. "l'l1e1'el'oi*e.:",_it' sitiiiai;'i'orill of late B.Kerr113€gowda living with 'll was v1'ce--versa. The iiceitals of i:i;.¢.«i2tfii:l_ brought up by defendant d.e'fenda11t No.4 was the protector oifgthe incredible, in View of the fact that t',estator"»ya'sathlghlyt:_C[ti_a'lifi'eCl person and working as an Associate _Pro;t'es"sior iii_.j-the; U'iiiVersit:y of Agricultural Sciences, V.BaogalCre~:. test'.e21t3.tii<had achieved his position on his merit. Cor1sid'erir1g_ the 'f?ﬁ(fl'i;l.(_iEillOIlEll qualification and position held by the test.éitQi'§".__"*lo'a,l{siAl.:'i1'i1p1'obal:)le that defendant No.4 was the K"V'prot,ector__and~ beri'etaetor of late l3.Kempegowda. The lV«defer1clant

-.l./'_j':was..,riot exaiiéined before the trial Court to substantiate these 62 ]'6£'il.£1lS. Therelfore. reeit,ais in the will are against the of defendants 1 1,04.

72. The learned trial Judge merely on the basis admission of signatures found on the will by the plai.ii'iiff:

on superfieieil appreciation of evidenoe-ll adverting to other aspecls, which judgment" has held ihai defe11d2ifii..s:'£.._to will"? dated 09.02.1990. Therefoye. ll'1€:,.~~ﬁl1l':1-(Al~l'I1'_,i:'§.,_'Ol'.lLl:1'f:~.l€a1El"i€Cl {rial Judge that defendants 1 of will as per Ex.D.1 by late B.Ke1iipegow'da" in cannot be sustained. Aecordiiiglﬁ we 'answer }3oi;§¢1v l\Eo,2 in the negative.

73. in View of «point No. 1, we hold that the plair1i;ii'l" is not e'ii!diLled_';;.eo A2;_iiy"°1*eiiel' in respect of items 1 82 2 of 'A__"l'~seh_edvule pi9o'pei'ties. so also in respect of moveables H1€;f1li£'i'i€d_ ih. sched ule.

lridli/ie\Vx,*.olﬂoii'r findings on point No.2, we hold items 1 & 2 ~hi»-3'fV'}3lai]1l schedule propeiﬁes held and lefl by late B K§e'm'pe;_§owda shall devolve according to the provisions of section 8 h Hindu Succession Act, 1956. The pla.iriiifl" being the ,'\j, . "I .:L,..-'5'"'"'"'"'"'€' I" ' 63 younger brother and class II legal heir in terms of schedule to the Hindu Succession Act. 1956 is entitled to items 1 & 2 of piaint 'B' schedule properties to the exclusion of defendants l to 3 (sons of elder brother of late Bliempegowda), who are class-IV in terms of schedule to the Hindu Succession regards service benefits described in pi_a.i.nt__'D' sclied.ii:1e,l.l'\veA.findV' from the contents of Ex.P.1, a sum 0I':Rs.i§'0.A(lOOii/.5 the legal heirs of late B.Kenipegdxwia. 'lll1ve1:efQ1'el;1i7\}e'vholdf that) plaintiff is entitled to receive servieellbevnefits ;:.rciy2i_i:3v1e on account of death oi" late B.Kempegoivds-ed' f_:fogfa'1 the lUniiv£e'rsity of Agi-icuiturai Sciences. Bangalore. . V

75. In the 1'esnlli,;l.f'fgveA l.l'e)€;.7lfﬁ_l.(ﬁ?\"iI).{i1_'_5,Z-

"Elie atppeal The impugned decree is modified as f0ilo«wls..- _ ._ I. O.$;N0A.79Oi#l99'l as it relates to items I & 2 of plaint 'A' ' sc1'ilediul.e "pr0pertie's;"s0 also rnoveables described in plaint ' v.V'C'..sch_edLI1el'is. dismissed.

H. H as it relates to items 1 {St 2 0i' plaint 'B' sctiedtile"properties and plaint. 'D' schedule is decreed. /c,@~»~« Iii.

EV.

64 The plaintiff is entitled. 10 possession of item No.1 of plaint 'I3' schedule property and he is enéiiled to c01'1si[fu.eti\'e possession of item No.2 of plaini. 'I-3' schedule _p..r_QpeH.yf~. Er} which defendant": No.5 is in occupation as 21 t€i"1'E1H1,:i11dUCt€d by late B Kempegowda.

The plaintiff is aiso eiltitled to «iteeeive service "beit1e'fi'.r.s"iV described in piaint 'U sCheé1;i'iie,H'(3n accduritiof death of late

8. Kempegowda from 1" ' Eh V" 01; V Agt'icultura1 Sciences, Bangalore.

Having regaii*c'i""i_c:$" rel}-.1Ei0r'i*:;i1ip' parties, they are dii*eefﬁed Iﬁﬁii' ciosiis.

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Karnataka High Court

B Ramamurthy vs S V Balakrishna on 16 July, 2010

Bench: D.V.Shylendra Kumar, N.Ananda