Karnataka High Court
Late M Balakrishna Rao vs Smt.Pramodha R Bhat on 3 February, 2023
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A. NO. 292/2004(RES)
BETWEEN
LATE M BALAKRISHNA RAO
(SINCE DECEASED ON 07.04.2015 BY LR'S)
1(a) SMT.ANURADHA B RAO
W/O LATE M.BALAKRISHNA RAO
70 YEARS, R/AT 5K(WW) FERNHILL GARDEN
46TH RING ROAD HSR LAYOUT
6TH SECTOR BBMP
BANGALORE - 560 034
1(b) SMT.GAYATHRI RAO
D/O LATE M.BALAKRISHNA RAO
AGED ABOUT 45 YEARS
5-WW FERNHILL GARDEN
46TH RING ROAD HSR LAYOUT
6TH SECTOR BBMP
BANGALORE - 560 034
1(c) SHRI GANESH RAO
S/O LATE BALAKRISHNA RAO
AGED ABOUT 38 YEARS
46TH RING ROAD, HSR LAYOUT
6TH SECTOR BBMP
BANGALORE - 560 034.
...APPELLANTS
(BY SRI DHANANJAY JOSHI, SR. ADV.A/W SRI SHISHIRA
AMARNATH AND SRI VACHAN H.U, ADVOCATES)
2
AND
1. SMT.PRAMODHA R BHAT
W/O RAGHAVENDRA BHAT
AGED ABOUT 64 YEARS
93, PRASHANTHA BHATLA
CHEMBUR, MUMBAI 71
2. SMT.JAYANTHI M BHAT
W/O P MOHAN BHAT
(SINCE DECEASED ON 24.12.2004)
BY LRS.,
2(a) PULIKALA MOHAN BHAT
S/O PULIKALA NARAYAN BHAT
AGED ABOUT 77 YEARS
R/AT 2674, G1 BRIGADE RETREAT
ADI PAMPA ROAD, V.V.MOHALLA
MYSURU - 570 002
2(b) PULIKALA MURALIDHAR BHAT
S/O PULIKALA MOHAN BHAT
AGED ABOUT 48 YEARS
R/AT 2674, G1 BRIGADE RETREAT
ADI PAMPA ROAD, V.V.MOHALLA
MYSURU -570 002
2(c) PULIKALA MANOHAR BHAT
S/O PULIKALA MOHAN BHAT
AGED ABOUT 48 YEARS
R/AT 2674, G1 BRIGADE RETREAT
ADI PAMPA ROAD, V.V.MOHALLA
MYSURU - 570 002
3. SMT.VASANTHI S BHAT
S/O P SACHIDANANDA BHAT
AGED ABOUT 57 YEARS
IPSHITHA NEAR M.S. MEDICALS,
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OPPOSITE AMBEDKAR MEDICAL COLLEGE,
KAVALABYRASANDRA
BANGALORE - 560 032
4. SRI M CHANDRASHEKAR RAO
S/O LATE VISHWANATHA RAO
AGED ABOUT 52 YEARS
NEAR BHAT'S NURSING HOME
7TH CROSS, GANDHI NAGAR
MANGALORE -575 003
...RESPONDENTS
(BY SMT.SUMA KEDILAYA, ADVOCATE FOR R1, R2(A-C)
AND R3 TO R4)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.29.11.03 PASSED IN
O.S.NO.23/97 ON THE FILE OF THE III ADDL. DISTRICT
JUDGE, D.K., MANGALORE, DISMISSING THE SUIT
SEEKING AN ORDER FOR GRANT OF PROBATE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.11.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. The present appeal is directed against the judgment and decree dated 29.11.2003 passed in OS No.23/1997, on the file of the III Addl. District Judge, Dakshina Kannada, Mangaluru.
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2. Parties are referred to as plaintiff/s and defendants for the sake of convenience, as per their original rankings before the Trial Court.
3. Brief factual matrix for the disposal of the appeal are as under:
A petition came to be filed by the plaintiff in P & SC No.39/1997 seeking grant of probate in respect of the registered Will of late M. Vishwanatha Rao dated 9.6.1992 registered in the Sub-Registrar's Office of Mangaluru Taluk.
It is further contended that the said Will is the last Will or testament of M.Vishwanatha Rao when he was in sound state of mind and body.
4. After issuance of Notice, since there was a contest by the respondents, by order dated 30.07.1997 the said P & SC petition filed under the provisions of the Hindu Succession Act, 1956 came to be converted into suit. Plaintiff further contended that plaintiff's father had good and sufficient reasons to bequeath the major portion of the estate to the plaintiff. Plaintiff's father was 5 employed as Sanitarty Inspector in Mangalore Municipality and he retired in the year 1963. He did not have the benefit of pension and also did not have substantial savings. 4th defendant who was a 8th standard school drop out, was employed in the year 1969-70 and was not in a position to support the financial needs of the plaintiff's father, as he was drawing only salary of Rs.400/- per month. Subsequently, 4th defendant was no doubt employed in Syndicate Bank, there again, the salary earned by the 4th defendant was hardly sufficient to meet the financial needs of the father of the plaintiff. Plaintiff was in service outside Mangalore and he was supporting his father financially by periodical payment of money through cheques and drafts. Plaintiff provided his parents the comfort of life by providing additional ceiling fan, a pump set to lift the water from the well, constructing a overhead tank and plumbing for water supply, providing Television set, sofa, refrigerator and dining table. 6
5. It is further contended that plaintiff's father in order to meet the financial requirements, mortgaged the house to meet the marriage expenses of the 2nd defendant and the mortgage was discharged by the plaintiff. It is also contended that to meet the marriage expenses of the 3rd defendant, plaintiff's father obtained loan from Janata Bank and the loan was repaid by the plaintiff. It is further contended that plaintiff's mother during her fag end of life, had illness and she was treated in Manipal and Vijaya Clinic, Mangalore and the plaintiff met all those expenses. It is further contended that Vishwanatha Rao being a Hindu, after the death, survived by the plaintiff and the defendants herein, who are his children. His wife Smt. Kamala pre-deceased him on 7.3.1990. Plaintiff has also furnished the assets that has come to the hands of the plaintiff in suit 'A' schedule to the plaint and undertakes that he is ready to disclose full and true inventory thereof and ready to furnish those details within six months from the date of grant of probate and sought for allowing the suit.
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6. Upon service of suit summons, all the defendants appeared before the Court and 4th defendant filed written statement contending the claim of the plaintiff. The 4th defendant admitted that P & SC No.39/97 is filed for the grant of probate but he has objected for the same and therefore, the probate petition is converted into Original Suit. It is further contended that M. Vishwanatha Rao was aged 86 years at the time of his death and he has not executed any Will and it is an ingenious concoction by the plaintiff and sought for dismissal of the suit.
7. He also contended that plaintiff is residing in Bengaluru and therefore, the question of he supporting the family of M. Vishwanatha Rao would not arise at all and sought for dismissal of the suit.
8. He also filed additional written statement with regard to the amendment carried out to the plaint and denied the amended portion of the plaint in incorporating the mortgage of the property and discharge made by him. 8 Defendants 1 to 3 adopted the written statement filed by 4th defendant by filing a memo.
9. Based on the rival contentions of the parties, the Trial Court raised the following issues:
1. Does the plaintiff proves that the deceased M. Vishwanatha Rao executed the Registered Will dated 9-6-1992 while the deceased was in a sound and disposing state of mind?
2. Does the 4th defendant proves that the deceased was physically and mentally weak and was not in a position to exercise his free Will?
3. Is the plaintiffs entitled for grant of Probate in respect of the said Will?
10. In order to prove the case of the plaintiff, plaintiff-M.Balakrishna Rao got examined himself as PW-1, P.R. Shenoy, S.M.Bhat and P. Ranjan Rao were examined as PWs.2 to 4. Plaintiff relied on 27 documentary evidence, which were exhibited and marked as Exs.P1 to P27 comprising of Ex.P1-Death Certificate, Ex.P2- 9 registered Will, Ex.P3-Simple Mortgage Deed, Ex.P4- Registered discharge receipt of mortgage, Exs.P5 to P19 are Letters, Ex.P20-Certificate of particulars issued by Grameena Bank of Gandhinagar Branch and Exs.P21 to P27 are Pass books of Canara Bank.
11. On behalf of the defendants, Surendra Kamath is examined as DW-1 and 4th defendant M. Chandrashekar Rao is examined as DW-2 and relied on 71 documentary evidence which were exhibited and marked as Exs.D-1 to D-71 comprising of Ex.D1-Sanction order for medical claim, Ex.D2-letter written to Deputy Senior Manager of Syndicate Bank, Ex.D3-Covering letter, Ex.D4-Claim form by Chandrashekar Rao, Ex.D5-Particulars of Medical Bills, Exs.D6 to D22-Medical Bills, Ex.D23-Covering letter, Exs.D24 to 37-Medical Bills and prescriptions, Ex.D38- Office copy of statement, Ex.D39-Letter from Syndicate Bank, Exs.D40 to 63-Pay slips of defendant No.1, Exs.P64 to D69-Purchase bills, Ex.D70-List prepared for house repair and Ex.D71-Telephone bills and receipt. 10
12. On conclusion of the recording of the evidence, the learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record, dismissed the suit of the plaintiff with costs.
13. Being aggrieved by the dismissal of the suit of the plaintiff, the present appeal is preferred by the legal representatives of the deceased plaintiff-M.Balakrishna Rao on the following grounds:
The decision of the Lower Court is Contrary to law and facts of the case and weight of evidence.
The court below having regard to the material to the material on record ought to have come to the conclusion that the plaintiff has proved its case and such the court below ought to have decreed the suit as prayed for. The finding to the contrary is illegal and has resulted in miscarriage of justice. It has filed to draw proper inference from the established facts.
The Lower Court has not properly appreciated the oral and documentary evidence on record.
The court below has erred in holding on Issue No.1 that the plaintiff has filed to prove that the 11 Registered will dated 9.6.1992 was executed by the Testator M. Vishwanatha Rao when he was in a sound disposing state of mind.
The court below has adopted a skeptical approach in appreciating the evidence regarding due execution and the testamentary capacity, than adopting a judicial approach.
The court below has acted illegally in rejecting the direct evidence of the advocate Sri. Rajan Rao who drafted the will who has given cogent evidence regarding the testamentary capacity of the testator as well as due execution of the will. The rejection of his evidence is based on flimsy grounds and untenable in law.
The court below has also erred in not accepting the evidence of the other Advocate P.W.# in the office of Sri.P.Rajan Rao who has attested the will as an attesting witness and who has duly sworn to the same before the court the rejection of the said evidence on the office walking or on vehicle is totally erroneous other reasons given for rejection his evidence are also flimsy.
The court below has equally erred in rejecting the evidence of Sri P.R.Shenoy, who was admittedly neighbor of the testator. The mere fact that he could not give the names of the 3 daughters of the testator 12 and that he did not attend the marriage of the said daughters is not a justification or good ground to brush aside the evidence of the witness. The reasons assigned for rejecting his evidence are wholly untenable.
The court below has filed to appreciate that there is abundant documentary evidence in the shape of letter written by the younger son 4th defendant to the plaintiff and documents in the shape of bank accounts which go to show beyond doubt that the plaintiff was liberally supporting the father, financially though the plaintiff was residing away. The court below could not have disbelieved the fact of the plaintiff having provided the funds for discharge of the earlier mortgage of the property.
The court below ought to have accepted the averments in the various letters written by the defendant No.4 brother to the plaintiff wherein he says that the father(testator) is quite well and making worldly enquiries and showing interest the family affairs.
The court below has erred in law in failing to note that the fact of the testator falling and getting admitted to hospital is much after the execution of the will. The fact that the plaintiff has fallen while walking only shows that the he was healthy. Getting admitted to the hospital for treatment in such cases, 13 cannot be viewed casting doubt about the mental capacity.
The observation of court below that the plaintiff has filed to prove that signature and thumb impression is that of the testator is wholly frivolous. The report of the finger print expert in support of the plaintiff ought to have been accepted and the rejection on the ground that the said report is not proved by calling expert in evidence, is untenable under law.
The fact that it is a registered document duly registered under the Registration Act, ought to have been given due weight the fact that there is an identification witness, identifying the executant should have been accepted and there is no justification under law to reject the same and doubt about the identify of the executant.
The court below has erred in law in holding that there are no good grounds to justify the granting of larger share to the eldest son the plaintiff. Inter-alia, the fact that the plaintiff was rendering financial assistance for more than two decades during the old age of the testator is sufficient reasons for the testator to give a larger share to the plaintiff. Further appellant has also redeemed the marriage. Besides, it is the reason/justification as afforded by the testator that has to be considered and so considered 14 it cannot be said that the reason is irrelevant or unsustainable.
The lower court has not applied correct principles of law to the facts of the case.
The court below has taken a skeptical approach in the appreciation of the evidence adduced by the plaintiff. The plaintiff's evidence is sufficient to dispel any legitimate/reasonable suspicion and the court below was not justified in raising whimsical doubts and to hold that the advocate who drafted the will has not taken sufficient care in accepting the identity of testator. This approach of the court below has resulted in failing to give effect to the last solemn wish of the testator and has resulted in miscarriage of the justice."
14. Sri Dhananjay Joshi, learned Senior counsel representing the plaintiff reiterating the grounds urged in the appeal memorandum contended that the learned Trial Judge has mis-directed himself in not properly appreciating the material evidence on record and wrongly dismissed the suit of the plaintiff resulting in miscarriage of justice and thus sought for allowing the appeal.
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15. He also pointed out that the learned Trial Judge did not follow the principles of law in appreciation of the Will in a given case and deviated from the true principles of law and thus disbelieved the Will executed by M. Vishwanatha Rao and dismissal of the suit resulting in miscarriage of justice and sought for allowing the appeal.
16. He further argued that just because the scribe of the Will initially filed the petition seeking grant of probate would not come in the way of plaintiff seeking the grant of probate and sought for allowing the appeal.
17. He also argued that the role of the attesting witness is not properly appreciated by the learned Trial Judge while dismissing the suit of the plaintiff and sought for allowing the appeal.
18. Per contra, Smt. Suma Kedilaya, learned counsel representing the respondents supported the impugned judgment by contending that the plaintiff being the propounder of the Will in question did not prove the Will 16 properly to the satisfaction of the court and therefore, the dismissal of the suit by the Trial Court is just and proper and sought for dismissal of the appeal.
19. He further argued that due to the suspicious circumstance, especially the health condition of M. Vishwanatha Rao at the time of execution of the Will is not in a sound health condition and it is not proved by the plaintiff which has been rightly appreciated in the impugned judgment by the learned Trial Judge and rightly dismissed the suit of the plaintiff.
20. She also pointed out that material evidence available on record is that M. Vishwanatha Rao had sustained head injury and therefore, mental fitness of M. Vishwanatha Rao in executing the Will is doubtful and therefore, the Trial Court rightly dismissed the suit of the plaintiff.
21. She also pointed out that material evidence on record would not indicate that plaintiff was contributing to 17 the family in discharging the mortgage and other expenses and therefore, 80% of the suit property bequeathed in favour of the plaintiff is thus incorrect and it is an ingenious concoction on behalf of the plaintiff along with other scribe and attesting witnesses and sought for dismissal of the appeal.
22. In view of the rival contentions of the parties, following points would arise for consideration:
(i) Whether the plaintiff has successfully established that late M. Vishwanatha Rao executed Ex.P2 Will in a proper manner or not?
(ii) Whether the plaintiff further proves that bequeath made in his favour to the extent of 80% is just and proper?
(iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(iv) What order?18
23. Before, the trial court, plaintiff got examined himself as PW-1 in order to prove the case of the plaintiff. He deposed that his father M. Vishwanatha Rao, during his life time, had executed a registered Will and his father died on 18.4.1997 in his house No.6-2-46 situated at Gandhinagar, Mangaluru. Death certificate of his father is marked as Ex.P1. He identified the original Will marked at Ex.P2. He has further deposed that the said Will is attested by an Advocate Sri S.M. Bhat and Sri M. Krishnamurthy. He also deposed that Advocate Sri P. Ranjan Rao has drafted the Will. He identified the signatures of M.Vishwanatha Rao, on Ex.P2 signed before the Sub-Registrar in the Sub-Registrar's office. He has specifically deposed that he was not present when the Will was executed by his father and after execution of the Will, his father sent the same through Registered post to him. He further deposed that his father was working as a Sanitary Inspector in Municipality and retired in the year 1960-61and he was not getting any pension. However, 19 with the savings, he has constructed a house in Mangaluru and there was no financial source for his retired life.
24. He has further deposed that after the retirement of his father in the year 1965, he started earning small amounts by private consultation and 4th defendant was only a student studying in 7th standard then. He has further deposed that 4th defendant could not pass 7th standard and he worked as a Mechanic in Transport Company for a while, but did not succeed there. Subsequently, he joined Syndicate Bank as an Attender, but he had no sufficient income to support his father financially.
25. He has further deposed that defendants 1 to 3 are his sisters and defendant No.1 was given in adoption to his senior aunt. He has further deposed that other two sisters are residing with their respective husbands after their marriage. He also deposed that his father had borrowed a sum of Rs.5,000/- for performing the marriage of his sister Jayanthi (second defendant) by mortgaging his 20 residential house. He has further deposed that the said mortgage was discharged and he supported his father for discharging the mortgage. He identified the discharge deed at Ex.P-4.
26. He also deposed that 4th defendant is also called by name Appaji. He marked the letters written by 4th defendant to him vide Exs.P5 to P19. Smt. Shashi is the wife of 4th defendant and she also used to write letters to him. He further deposed that till 1977 he has worked in Canara Bank at Bengaluru and thereafter, he had been to Abroad. When he was in Abroad, he had opened an NRI Account at Canara Bank and he used to send money from Abroad to the said account and from the said account, he used to issue cheques to his father for meeting his financial necessity. He further deposed that he had Fixed Deposit kept in Canara Bank, Gandhinagar Branch and to substantiate the same, he had produced the certificate issued and marked at Ex.P20. He identified the Savings Bank account passbooks as Exs.P21 to P27 and that of his 21 father bearing SB account No.1194. He deposed that in the passbook of his father, there are entries with regard to the encashment of the cheques issued by him.
27. He further deposed that soon after his retirement of his father, he had constructed cow shed in the suit property and the same was converted into an out- house for meeting out his financial need. The same was let out and his father used to collect the rent in respect of the said out-house. Since 4th defendant was not in a position to financially maintain his father, he has allowed the 4thdefendant to collect the rent and give it to his father for the financial needs of his father.
28. In his cross examination, it is elicited that himself and his sister Jayanthi and Vasanthi are graduates. He has further answered that except for educational expenses of Pramoda, his father had looked after the educational expenses of other children. He has answered that in the year 1965, he joined Canara Bank as a clerk. In the year 1972, he got promoted and in the year 1974, 22 he was transferred to Bengaluru Branch. He admits that after 1974, he never stayed with his father on a permanent basis but he used to often visit his father. He admits that he got married in the year 1975 and in the year 1977 he resigned the job at Canara Bank and he started working Abroad from the year 1977-90. He admits that after he retuned to India, in the year 1990, he has permanently stayed in Bengaluru. He admits that in the year 1991, he had ill health and therefore, in the year 1993, he had to undergo surgery in respect of Urinary bladder. He admits that from the year 1996 onwards, he could not do any job and therefore, he started working as a Financial Consultant. He has answered that from the years 1996-98, he worked as a Consultant with the builder in Bengaluru. He admits that his mother died on 7.9.1990 on account of high Blood Pressure and heart ailment.
29. He admits that his father has retired earlier to the marriage of second and third defendant. He has further answered that the financial assistance made by him 23 for discharge of mortgage deed is not evidenced by any documents. He admits that Exs.P3 and P4 were handed over to him by his father in the year 1991. He has answered that he used to send money to his father every month and additional money whatever requested by his father. He has further answered that he started sending money to his father from the year 1977. He denied the suggestion that 4th defendant looked after his parents till their death. He pleaded ignorance as to who admitted his father to the Hospital before his death. He admits that one Dr.Shenoy has treated him. He answered that he has spent about Rs.10,000/- at that juncture, but he has no documents of evidence for the same.
30. He has further answered that his father has purchased a vacant site and thereafter, constructed building thereon. The vacant site was measuring about 14 to 16 cents. He admits that the entire construction expenses were met by his father. He further answered that his father used to earn small amount of money by 24 working as a consultant after his retirement. He admits that in the year 1969, 4th defendant got a job as a 4th Grade Attender. He has answered that in the year 1992, he came to know about the Will for the first time when he received the same through a Registered Post. He admits that his father had suffered Urinary Track Infection. He has answered that he has not disclosed the execution of the Will to the defendants and the defendants came to know only after filing the present case. He denied the suggestion that Exs.P5 to P19 are not the letters written by his father.
31. Sri P.R. Shenoy is examined as PW-2. He deposed that he is a neighbour of the deceased Retired Sanitary Inspector M.Vishwanatha Rao. He has further stated they were neighbours for a period of 40 years and he used to visit the house of M. Vishwanatha Rao often. He has further stated that when M. Vishwanatha Rao died, he must have been aged about 90 years and according to him, M. Vishwanatha Rao had stable health and used to 25 answer apparently and he had knowledge on worldly things. In his cross examination, he has answered that in the year 1997, M. Vishwanatha Rao died. He has further answered that M. Vishwanatha Rao was never admitted to Hospital. But he does not know the name of the wife of Vishwanatha Rao and when his wife died. However, he has answered that W/o. Vishwanatha Rao had pre- deceased Vishwanatha Rao. He has answered that plaintiff was residing Abroad and he never stayed with Vishwanatha Rao. He has stated that plaintiff is residing in Bengaluru for about last 5 years and whenever he used to visit Mangaluru, he used to visit him also and last time when he met him is about an year earlier. He admits that M. Vishwanatha Rao was working as Health Inspector in Municipality and thereafter, he was doing private consultancy. He denied the suggestion that in order to help the plaintiff, he has given a false evidence.
32. Sri S.M. Bhat, one of the attesting witnesses to Ex.P2- Will is examined as PW-3. He identified the Will 26 and he identified his signature in the Will. He further stated that he was working as a Junior lawyer with Sri P.Ranjan Rao, Advocate for about 11 years. He identified the Will and his signature in the Will. He further deposed that on 8.6.1992 evening, M. Vishwanatha Rao, approached his Senior P. Ranjan Rao and requested him to draft a Will and as per the dictation of his Senior counsel, he wrote a Will and thereafterwords, M. Vishwanatha Rao was asked to come next day. M. Vishwanatha Rao visited their office next day along with his relative and M. Vishwanatha Rao subscribed his signature to the Will and thereafter, he has also signed and his relatives are signed the Will as attesting witnesses. He has further answered that Vishwanatha Rao had stable physical and mental condition at the time of subscribing the signature to the Will. Since, it was evening, it was agreed that the Will has to be registered on the next day.
33. He has further stated that on the next day, in the Sub-Registrar's Office, he registered the Will. In his 27 cross examination, he has answered that when he worked as Junior with P. Ranjan Rao, he come across that his senior has drafted about hundreds of Wills. He has further answered that he has attested about 10-15 Wills when he was working as a Junior in the office of P.Ranjan Rao. He has further answered that the documents were given by M. Vishwanatha Rao for the purpose of registration of Ex.P2.
34. Sri P.Ranjan Rao, who drafted the Will as per Ex.P2 is examined as PW-4. He deposed that from the year 1980, he is practicing as an Advocate and he drafted Ex.P2. He has deposed that M. Vishwanatha Rao and his brother-in-law Vishnu Murthy had approached him for the purpose of drafting the Will. He has stated that he knows the family of M. Vishwanatha Rao from his father's time. He has further stated that on 9.6.1992, at the instructions of the M. Vishwanatha Rao, he has drafted the Will and the same was dictated to PW-2 and PW-3 and he took dictation and later on it was typed. Since, it was in the evening, Vishwanatha Rao was asked to come on the next day for 28 the purpose of registration and Vishwanatha Rao and Vishnu Murthy and himself and PW-3 went to the office of the Sub-Registrar and got the Ex.P2-registered.
35. In his cross examination, he has answered that at the first instance, P & SC petition was filed by him. He has further answered that earlier to 1992, he was not having personal acquaintance with M. Vishwanatha Rao. However, he had seen him. In the year 1992, M. Vishwanatha Rao had approached him once or twice regarding his pension. He has answered that M. Vishwanatha Rao had disclosed that he had five children and among them, the daughters were married. He has further stated that since M. Vishwanatha Rao did not give any instructions with regard to his daughters, he had not incorporated the same in the will. He has answered that he has not retained the draft of the Will written by PW-3 before it got typed as per Ex.P2. He has further answered that he got acquaintance with the plaintiff for the purpose of filing the present case. He further answered that plaintiff 29 approached him for the purpose of obtaining a probate. He has answered that for obtaining probate plaintiff filed the petition.
36. Sri Surendra Kamath is examined as DW-1. He deposed that on receipt of the court summons, he has appeared before the Court and produced the documents. He produced the medical claim reimbursement bill as per Ex.D1, the letter written by Chandrashekar Rao to Deputy General Manager as Ex.D2 covering letter sending the medical re-imbursement claim as Ex.D3 claim made by Chandrashekhar Rao for medical reimbursement in the prescribed format as Ex.D4. The details of the bill as Ex.D5, and the bills filed along with the claim application marked as Exs.D6 to D22. He has further deposed that the supporting papers and orders with regard to the settlement of the medical reimbursement bill would be kept in Zonal office for a period of five years and therefore, the medical reimbursement claim could not be produced by Chandrashekar Rao for the year 1989-90.
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37. He has further deposed that earlier Zonal office was situated in Mangaluru and the same is relocated to Udupi District. He has answered that the documents produced before the Court were secured from Udupi to Mangaluru office and then produced before the Court. He admits that he is not in a position to identify the signature of Chandrashekar Rao (4th defendant). He admits that in Ex.D4, there is no date mentioned and in Ex.D5 nobody has signed.
38. 4th defendant-Chandra Shekar Rao is examined as DW-2. He has deposed that defendant Nos.1 to 3 are his sisters and his mother died in the year 1990 and his father died in the year 1997. He has further deposed that after the death of his mother, the physical and mental health condition of his father has become fragile as he was suffering from diabetes and due to old age, he had memory loss and he was not in a position to identify the people properly. In the year 1990, he was being treated with Dr.Ramananda Rao and Dr.Ramesh Pai. He further 31 deposed that his father had an injury on the head and hand and when he was proceeding somewhere and he was admitted to Ullal Nursing Home at Mangaluru as inpatient in the year 1995. He has specifically deposed that in the year 1992, his father was not having mental fitness to execute any document and his father has not executed the Will as is claimed by the plaintiff. He further deposed that along with his parents, himself and his wife alone were residing and plaintiff was transferred to Dharwad after 1973 and after serving for two years in Dharwad, he resigned his job and went to Abroad and stayed there for 10 years and returned to India. After return to India, plaintiff started living in Bengaluru along with his family members. He has further deposed that after 1973, plaintiff and his family members never resided with his parents and his parents were looked after by himself and his wife alone. However, he has stated that once or twice in a year, plaintiff used to visit Mangaluru. He has specifically deposed that no financial assistance was rendered by the plaintiff to his parents. 32
39. He further deposed that on 14.01.1976 he joined Syndicate Bank as an Attender and earlier to that he has worked for three years in CPC Company as a Mechanic. From 1971 to 74, he worked as a salesman in an Automobile spare parts Company. He was getting salary of Rs.300/- per month when he was working as a mechanic, and Rs.400 to 500/- when he was working as a sales man. He further deposed that after 1974, he remained unemployed for about one year.
40. He further deposed that his father was rendering the service of a consultant in water and sanitary business and he used to earn about Rs.400 to 500/- per month after his retirement. He further deposed that there was a shed in the hind portion of the suit property and the same was converted into a house and it was let out to him by his father and his father used to meet his personal expenses from the rent and the coconuts grown in the house. He has further stated that plaintiff used to send Rs.300/- per month to his father for paying telephone bill and the same 33 was being paid to the account of his father through cheque as the telephone was standing in the name of the plaintiff.
41. He denied the suggestion that plaintiff had contributed money for purchase of sofa, electrical wiring, TV, Fan, plumbing and construction of water tank. He has answered that himself and his father have spent money for the same. He also deposed that for discharge of the mortgage, plaintiff has not spent money and his father has looked after the educational and marriage expenses of all his children. His father had equal love and affection towards the children. He denied the other suggestions.
42. He has specifically deposed that he had spent money for the medical expenses of his parents and he has obtained medical re-imbursement from his employer.
43. He has deposed that the documents produced by DW-1 pertain to medical reimbursement claim made with his employer. He has produced five receipts for purchase of TV fridge vide Exs.D64 to D69. He has 34 produced salary slips pertaining to him as Exs.D40 to D63. He has produced Ex.D64 and D69 towards the purchase bills and Ex.D70 is the purchases list for house repair.
44. In his cross examination he admits that apart from the house where Sri Vishwanatha Rao was resided, there was one more house which was let out to a third party and his father was earning Rs.300/- rent per month from the said house. He admits the signature of his father on Ex.P3. He admits that when his father got retired from service, he was studying in 7th standard and he could not complete 7th standard. He admits that his sisters are all graduates.
45. He admits that his sister Vasanthi has signed Ex.P3 as Ex.P3(f). He admits that all his sisters are married and well settled. He admits that when he joined as attender in Syndicate Bank, his salary was Rs.300/- and thereafter, in the year 1982, he was getting Rs.500/- per month and thereafter, with a jump of Rs.100/- per year. He admits that Exs.D40 to 63 are not the pay rolls issued 35 by the Bank. He admits that he got married in the year 1979 and he has no issues. He admits that when his father got retired, his father was not getting any pension.
46. He admits that he was also called as Appaji. He denies the suggestion that the medical reimbursement claimed by him is not pertaining to the medical expenses of his father. He admits that when plaintiff was residing Abroad, he had maintained an NRI account in Canara Bank Gandhinagar, but he pleaded ignorance about the remittance made to the said account. He admits that he has seen the passbook in respect of the said NRI Account. He denied the suggestion that M. Vishwanatha Rao was hale and healthy at the time of execution of the will.
47. In view of rival contentions and the material evidence placed on record it is just and necessary for this court to cull out the contents of the disputed will for ready reference. Ex.P2 Will reads as under:
"I M.VishwanathaRao son of late
ShridharAnanthaiah, aged about 84 years
36
residing at 7th Cross, Ganchinagar, Mangalore -3 a Hindu Indian being of sound mind and health hereby make this my last will and testament. I have not executed any previous will.
I hereby appoint Shri M.Balakrishna Rao my eldest son as executor of this Will. This Will come into effect after my life time.
I am the owner of the property premises situated within the Mangalore City Municipality bearing TS No.666/54A of 6th ward in Boloor village of Mangalore Taluk measuring 0.14 Cents consisting of a residential building old No.157, New No.6-2-46 and 6-2-46A with a detached outhouse bearing New No.6-2-46/1. This is my self acquired property. My first son M.Balakrishna Rao has been looking after this property. During the year 1969 I had to mortgage this property for a loan raised by me. This has been repaid in full and discharge receipt dated 30th May, 1989 has been duly registered. My eldest son Shri M.BalakrishnaRao has provided me money to discharge the mortgage. I devise and bequeath the said immovable property on my two sons Shri M.Balakrishna Rao and M.Chandrasekhara Rao as under:
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1. Main house with land appurtenant thereto the land totally measuring 66 feet from east to west facing 35 ft cross Road and 76 ft from North to South shall vest in my first son Sri M.BalakrishnaRao .
2. Out house with land appurtenant thereto the land totally measuring 48 ft. from east to west and 23 ft. from North to South shall vest in my second son Shri M.Chandrasekhara Rao. He shall have right of passage not exceeding 5' wide in the property bequeathed on Shri M.Balakrishna Rao.
All my moveable properties including bank balances gold and silver ornaments shall vest in my eldest son Shri M.Balakrishna Rao.
If my son Balakrishna Rao predeceases me, the properties bequeathed to him hereby shall go to his wife and children. If my son Chandrashekar Rao predeceases me, the properties bequeathed to him hereby shall go to his wife.
In witness whereof, I the said M.Vishwanath Rao, have hereunto set my hands at Mangalore on this the 9th day of June, 1992."
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48. Before Will can be accepted as genuine, it is settled principles of law, that the Court has to consider whether the Will has passed through five stages, often called as "Panchapadi".
49. How a disputed will has to be appreciated by a Court is no longer res integra. The Hon'ble Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, reported in AIR 1959 SC 443, has authoritatively held as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the 39 said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to 40 whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will 41 and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
\
50. Almost on similar lines, a coordinate bench of this Court in the case of J.T. Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, reported in 2008 SCC OnLine Kar 188 = ILR 2008 KAR 2115, has held as under :
42
"(A) INDIAN SUCCESSION ACT, 1925 --
SECTION 2(h) -- Will -- Proof of -- Legal requirements -- Duty of the Court -- Five steps to be considered -- HELD, Under the Act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all.
Therefore, the first step is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document -- FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual -- The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will -- The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will
-- The fifth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 --
SECTION 63 R/W SECTION 68 -- Execution of a 43 Will under -- Attestation and Execution -- Procedure -- HELD, The Will that is executed is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The Will is a document required by law to be attested. The execution of Will must include both execution and attestation. "Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail -- The Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that both of them should be present at the same time -- FURTHER HELD, Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63(c) of the Act. Therefore, the said document shall not be used as evidence 44 until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whether such a Will is registered or not registered, in the eye of law it makes no difference. Even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law -- It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, as such it is valid and enforceable."
51. Among the 'Panchapadi', first step is about the document produced before the court, prima-facie do not satisfy the legal requirements to hold the Will as genuine.
52. Second step is whether any other legal heirs are disinherited.
45
53. Third step is whether the testator was in sound state of mind in executing the Will.
54. Fourth step is whether any suspicious circumstances surrounding the execution of the Will.
55. The fifth and last step is the Will executed in accordance with Section 63 of the Indian Succession Act r/w Section 68 of the Indian Evidence Act.
56. In light of legal principles enunciated in the above cases, when the material on record is analysed in an analytical manner, it is seen that the signature found on the Will, is disputed by the 4th defendant. Therefore, the disputed Will was referred to the handwriting expert. The signature and the Left Thumb Mark of Vishwanatha Rao was sent to the Finger Print Expert.
57. The report of the Finger Print Expert clearly establishes that the admitted signature and the disputed signature on the Will and so also Left Thumb Impression are one and the same. Though the evidence of an expert 46 is only opinion evidence as per Section 45 of the Indian Evidence Act, since the signature is disputed by the 4th defendant, the plaintiff is successful in establishing the signature and the LTM found on the disputed will is that of Vishwanatha Rao.
58. Plaintiff, in order to discharge the burden cast on him to prove the Will in accordance with law stepped into the witness box and got himself examined as PW-1 as referred to supra. He also examined B.R.Shenoy who is the neighbour of Vishwanatha Rao, to establish the health condition of Vishwanatha Rao at the time of execution of the Will. So also he examined Sri S.M. Bhat one of the attesting witnesses as PW-3 and Sri P.Ranjan Rao who is a practicing advocate and the scribe of the disputed Will is examined as PW-4. In other words, the plaintiff is successful in discharging the burden cast on him in establishing the Will as is required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
47
59. However, it is the case of the 4th defendant that Ex.P2 is concocted by active collusion of Plaintiff and PW4.
60. It is the case of the plaintiff that after he resigned the job in Canara Bank, he went Abroad and served there for about a decade and returned to India. Material on record clearly shows that after he returned to India, plaintiff got settled himself in Bengaluru. PW-1 has specifically deposed that post retirement Vishwanatha Rao did not have any pension facility and therefore, he was financially dependent on PW-1 and that he has helped his father by crediting money regularly into the account of Vishwanatha Rao and he has also financially helped him in discharging the mortgage amount whereunder he has mortgaged the suit house in the bank for meeting the expenses of marriage of one of his daughter. Same is seriously disputed by the 4th defendant.
61. In order to prove that mortgage has been discharged by him, the discharge certificate is produced by the plaintiff. It is pertinent to note that PW-1 has deposed 48 that he received the Registered Will and the discharge certificate through Registered Post. It is deposed by the 4th defendant that the plaintiff never stayed with Vishwanatha Rao after he returned from Abroad, and it is the 4th defendant who was residing with him and he was taking care of day to day requirements of Vishwanatha Rao. Had that been so, how PW-1 got the custody of discharge note issued by the Bank is a question that remains un-answered on behalf of the defendant.
62. On the contrary, the same would probabalise the theory propounded by the plaintiff that it has come to his custody as Vishwanatha Rao has sent the registered Will and the discharge certificate by registered Post.
63. This also pre-supposes that the financial help rendered by PW-1 has been recognized and acknowledged by Vishwanatha Rao by sending the original of registered Will as well as the discharge certificate to plaintiff. Nobody would envisage that there may be a litigation down the line and therefore, would be expected to retain the registered 49 postal cover whereunder the plaintiff received the original Will as well as the Discharge certificate. Suffice to say, that the custody of the Will has been properly explained by PW-1.
64. The second ground on which the Will is sought to be assailed by the 4th defendant is granting of major portion of the property that is to the extent of 80% to PW- 1 and only bequeathing 20% of the suit property in favour of the 4th defendant.
65. It is pertinent to note that if at all the plaintiff concocted the Will as is contended by the 4th defendant, he would have concocted the Will taking 100% of the property in his name, and why would he grant 20% to the 4th defendant. In this regard, no explanation is forthcoming on behalf of the 4th defendant before the Trial Court as well as before this court.
66. Therefore, mere granting a larger interest in favour of the plaintiff itself is not act as a suspicious 50 circumstance. Further, it is well settled principles of law that mere exclusion of one of the sharers or granting a lesser share to one of the children of the executant would not ipso facto act as a suspicious circumstance. Further, it is always open for the court to find out the reason behind such bequeath.
67. In the case on hand, when the same is analysed, Ex.P-2l itself answers as to why larger share of the suit property has been granted in favour of the plaintiff and lesser interest in favour of the defendant. In this regard, in page 2 of Ex.P-2 it has been mentioned as under:
"This is my self acquired property. My first son M. Balakrishna Rao has been looking after this property. During the year 1969 i had to mortgage this property for a loan raised by me. This has been repaid in full and discharge receipt dtd 30th May, 1989 has been duly registered. My eldest son Sri M. Balakrishna Rao has provided money to discharge the mortgage."51
68. Learned Trial Court in the impugned judgment, disbelieved the will by assigning a reason that the one of the attesting witnesses is the junior advocate of the scribe of the Will. The Trial Court also assigned the reasons as to the competency of the attesting witness in attesting the Ex.P-2 and doubted that Will as not genuine.
69. Often, a question arises as to who is an attestor? As per Black's Law Dictionary, an Attestor is defined as "One who attests or vouches for." Therefore, it is necessary for this court to find out as to what exactly is the role of an attesting witness in a given case in proving the Will.
70. An attesting witness is a person who puts his sign or mark on a deed or Will at the request of its creator, immediately after its execution, for the purpose of proving and identifying that it is executed by the maker of it. In case of a Will, an attesting witness is the one who witnesses the testator executing the Will by signing it. Thus, the execution and attestation of a Will are clearly 52 distinct formalities. The former is the act of the parties; and latter is that of the witnesses.
71. Further, what is a sign or mark? The term "sign", as per Section 3 (56) of the General Clauses Act 1897, includes not only "mark" but grammatical variations and cognate expressions of both terms, as well. Sign is therefore a mark to authenticate a document as a binding one on the person whose sign or mark is so written or affixed on it.
72. In case of a Will, the witnesses are expected to see the testator sign the Will and then they sign it by themselves. Thus, attestation of a Will implies something more than merely subscribing a signature in the presence of a testator by someone who has seen the testator signing the document. A Will not attested is not a legally valid one.
73. When once, a Will is duly attested, the attestor/s during the process of proving the Will, can be 53 examined so as to know whether the testator had the intention and sound mental capacity to execute the Will, when they are called upon before the court of law to testify the testator's signature in the Will.
74. Thus, an attestor of a Will basically ensures that it is the testator who signed the Will in his/her presence and he can testify its authenticity. Attestor is needed to testify the validity of the Will when someone questions the legality of the Will.
75. Further, the attestor can depose whether the testator was of sound mind while executing the Will and testator was clearly conscious of the contents of the Will. The attesting witness can observe the actions of the testator during the process of execution of the Will. In a given case an attestor may also be examined to prove that the Will was executed out of the testator's free choice. Thus, in general, an attesting witness need not know the contents of the will. His role is to make it clear that the Will was duly executed by the testator. Similarly, as per 54 Section 67 of the Indian Evidence Act, if a document is alleged to be signed by any person the signature of the said person or his handwriting must be proved.
76. Thus, it can be safely concluded that in a given case where veracity or genuineness of a Will is called in question, the role of an attesting witness is to provide such necessary evidence to make the property distribution plan of the testator work as per his wishes in his absence. Therefore, an attesting witness is not just a ritualistic signer of a document and his act is not restricted to mere signing of a document. The attesting witness is a key player in putting the plan of action of the testator into reality after the death of testator.
77. Having said so, the legal requirement relating to the execution and proof of Wills under the Indian Succession Act and Section 68 of Indian Evidence Act prescribes certain procedures.
55
78. In this regard, for ready reference, Clause (c) of Section 63 of the Indian Succession Act assumes importance which is culled out hereunder:
"63. Execution of unprivileged wills.-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules--
(a)-(b) * * *
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
79. Further, Section 68 of Indian Evidence Act reads as under:
56
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence; [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
80. It is also equally settled principles of law and requires no emphasis that a Will needs to be proved by the propounder in the absence of the executant and therefore, a special procedure is prescribed under the Indian Succession Act and the Indian Evidence Act. Such a procedure has been meticulously followed in the case on hand. Further, the judicial pronouncements have time and again said that the Will cannot be viewed from the angle of the court and the court must step into the shoes of the 57 executant while appreciating the bequeath and un- necessary doubts should not be raised about the manner in which bequeath has taken place.
81. When the said principles of law is applied to the case on hand, one has to see from the angle of the executant i.e., deceased Vishwanatha Rao in appreciating the bequeath made in favour of PW-1 to the extent of 80% and 20% in favour of the 4th defendant. The narration referred to supra in the Will amply establishes the same.
82. It is an admitted fact that the earnings of 4th defendant was hardly sufficient for him to maintain his family and therefore, the contention urged on behalf of the 4th defendant that he looked after Vishwanatha Rao during his life time and plaintiff did not contribute any amount for Vishwanatha Rao for his day to day expenses looses its significance.
83. Further, even though PW-1 resided in Bengaluru, as a dutiful son, he has looked after 58 Vishwanatha Rao especially by giving post retirement comforts in providing house hold articles such as TV, Fan, Sofa set etc.,
84. Yet another ground on which the 4th defendant further attacked the Will is by contending that nothing is bequeathed in favour of his daughters, which is again a suspicious circumstance. There is no dispute that the suit property is the self acquired property of Vishwanatha Rao. It is his will and wish as to how a bequeath has to be made. Mere exclusion of the daughters would not thus be treated as a suspicious circumstance ipso facto. Non mentioning of why no share is given to the daughters in the Will is again a matter that has to be looked into from the angle of Vishwanatha Rao and not from the angle of the defence taken by the 4th defendant. Further, none of the daughters are examined on behalf of defendants to establish that the Will is bad in law or any other relative has been examined on behalf of the defendant to disprove the contentions taken by the plaintiff.
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85. Next ground on which the Will is sought to be assailed by the 4th defendant is that Vishwanatha Rao met with an injury on the head two years later the execution of the Will and his self condition was fragile and therefore, he was not in a fit mental condition to execute the Will. Said argument is also looses its significance in as much as the injuries said to have been sustained by Vishwanatha Rao is two years after the execution of the Will. Further, the neighbour Sri Shenoy has specifically stated that Vishwanatha Rao was hale and healthy. The Will is a registered Will and therefore, it pre-supposes that Vishwanatha Rao was in a position to understand what has been executed before the Sub-Registrar. Further, the corrections carried out in the Will is also signed by Vishwanatha Rao and therefore, it shows that Vishwanatha Rao was in a fit mental condition with sufficient coherence in understanding the worldly needs and therefore, the argument put forth on behalf of the 4th defendant that Vishwanatha Rao did not have sufficient mental fitness to execute the Will cannot be countenanced in law. Mere 60 physical ailments like Diabetes etc., would not usually affect the mental fitness of a person unless it is so severe and the proximity of the time of the execution of the Will and the serious illness said to have been faced by Sri Vishwanatha Rao. In the case on hand, no medical records are placed by the 4th defendant to show that Vishwanatha Rao at the time of execution of the Will, had a very bad physical ailment which resulted in decision making process and also affected the mental fitness of Vishwanatha Rao, and thus, the Will is to be doubted.
86. Insofar as the health condition of Vishwanatha Rao is concerned, on behalf of the defendant, Exs.D7 and D8 are relied on, and they are the documents showing that Vishwanatha Rao was inpatient in Dr. T.M.A. Pai Rotary Hospital, Mangaluru, between the period 8.8.1994 and 10.08.1994 for non concussional head injury with lacerated wound over parietal area with multiple compression fracture of vertebral body due to osteoporosis (Grade-IV). 61
87. The said documents have been over read by the learned Trial Judge in assessing the physical and mental condition of Vishwanatha Rao. Learned Trial Judge has opined that if the health condition in August, 1994 resulted in a fallen head injury, his health condition at the time of making the Will has also fragile and therefore, he was not in a position to move out of the house either to P.Ranjan Rao's office or to the Sub-Registrar's office.
88. The said reasoning is fallacious in nature inasmuch as nobody is examined on behalf of the defendant to establish that Vishwanatha Rao had a fragile health, so that he could not move around properly.
89. On the contrary, the letters which are produced at Exs.P7, P8, P9, P11, P12 and P16 when considered cumulatively, it is found that health condition was stable and he is used to move around both in the morning and in the evening within the precincts of his house. In Ex.P8, there is a mention about the fall. However, there is no 62 mention that he was not at all in a position to move around without the assistance of anybody.
90. It is also found from the contents of those letters that the repair work of the main house need not be undertaken as per Ex.P5. These aspects when taken into consideration cumulatively, Sri Vishwanatha Rao did possess proper physical and mental health so as to understand the worldly things and was in a position to take a decision of day to day aspects and also on the other worldly aspects with coherent mind and logical reasoning.
91. It is settled principle of law that the Will has to be appreciated by stepping into the shoes of the testator and not by deciding the genuineness of a document other than the Will. In other words, the appreciation of evidence with regard to the Will deviates itself from the appreciation of any other document having regard to the procedures prescribed under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. 63
92. The scribe of the Will and the attesting witness may be the Senior advocate and one of the attesting witnesses being his Junior, would not make much of difference in accepting the Will.
93. Admittedly, the propounder of the Will was at Bengaluru and he had no role to play in getting the disputed Will executed by Vishwanatha Rao by sitting in Bengaluru. Therefore, the reasoning assigned by the learned Trial Judge that Vishwanatha Rao did not have proper mental and physical health cannot be countenanced in law.
94. The fourth step is the Suspicious Circumstances surrounding the Will. From the above discussion, especially, when the expenses met by the propounder of the Will for the up-keeping of the house, contributing the finance for release of the mortgage catering to the comforts of Vishwanatha Rao by spending money in purchasing house hold articles like Sofa set, ceiling fan etc., the testator has chosen to bequeath 80% share in the 64 suit property in favour of the plaintiff and 20% in favour of the 4th defendant. Only on the reason that the daughters have not been given any share would itself is not sufficient to doubt the genuineness of the Will. Examining the attestor and the scribe of the Will, the plaintiff has complied the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
95. Thus, from the overall discussion of the entire material on record in its proper perspective in view of the grounds urged in the petition, the irresistible conclusion that this court can reach is to hold that the plaintiff has complied all the five steps - 'Panchapadi' in accordance with law and the disputed Will has passed through five steps successfully.
96. Thus, the reasons assigned by the learned Trial Judge in the impugned judgment needs to be set aside and appeal needs to be allowed. Accordingly, Point Nos.1 & 2 are answered in the Affirmative and Point No.3 is answered in the Negative.
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97. REGARDING POINT NO.4: In view of my findings on Point Nos.1 to 3 above, following order is passed:
ORDER
(i) The Appeal is allowed.
(ii) Consequently, the impugned judgment dated 29.11.2003 passed in OS No.23/1997 by the District Judge, Dakshina Kannada, Mangaluru, is hereby set aside.
(iii) The prayer in OS No.23/1997 needs to be allowed by decreeing the suit as prayed for with costs throughout.
Sd/-
JUDGE PL*