Karnataka High Court
Smt. Yallawwa vs Hemaraddi on 30 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 30th day of November, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR FIRST APPEAL NO.1113/2003
BETWEEN:
Smt.Yellawwa
W/o Hucharaddi
Radder, Age: 40 years
Occ: agriculture
R/o Karur
Taluk: Ranebennur ...Appellant
(By Sriyuths M V Hiremath, K N Patil and V S
Kalasurmath, Advocates)
AND :
1 Hemaraddi
S/o Basapa Haller
Age: 35 years
Occ: agriculture
R/o at Kusagur
Taluka - Ranebennur
2 Smt.Mallawwa
W/o Ramaraddi Radder
Age: 30 years
Occ: Agriculture
R/o Muthukur
Taluk Hagaribimmonahalli
:2:
Dist: Bellary
3 Smt.Shantawwa
S/o Basappa Haller
Occ: Household
R/a Kusugur
Taluk Ranebennur
District: Haveri ...Respondents
(By Sriyuths: K L Patil, S S Beturmath & S.A.Mullur,
Advocates)
----------
This appeal is filed under Section 96 of CPC
against the judgment and decree dated 09.06.2003
passed in O.S.No.78/2000 on the file of the Addl.Civil
Judge (Sr.Dn), Ranebennur dismissing the suit for
declaration and partition and separate possession.
This appeal coming on for orders this day, the
Court delivered the following:
JUDGMENT
This is plaintiff's appeal questioning the correctness and legality of the judgment and decree passed in O.S.No.78/2000 by Addl.Civil Judge (Sr.Dn), Ranebennur, whereunder suit filed by plaintiff for declaration and possession came to be dismissed. :3: 2 Heard Sri M.V.Hiremath, learned Advocate appearing for appellant and Sri K.L.Patil, learned Advocate appearing for respondent-1. This Court, by order dated 27.03.2004 has held service of notice on respondents-2 and 3 as sufficient.
3 Parties are referred to as per their rank in the trial Court.
4 Facts in brief leading to filing of this appeal are as under:
A Suit for declaration and possession came to be filed by plaintiff contending that she is the owner of suit schedule property and suit property was bequeathed by her deceased father - Basappa under a registered Will dated 08.12.1994. Plaintiff further contended that defendant No.1 being son of deceased Basappa and her brother took advantage of the fact that she was residing at Kusgur village, and as such got entered his name in the revenue records in respect of suit schedule property :4: by colluding with the Village Accountant and forcibly took possession of the said property. On these grounds she sought for declaration that she has become absolute owner of the suit schedule property by virtue of Will dated 08.12.1994 and in the alternative, she prayed for partition and separate possession of her 1/4th share in the suit schedule property.
5 On service of suit summons, defendant No.1 appeared and filed his written statement contending interalia that there was no execution of Will in favour of plaintiff and same is created and concocted by plaintiff; said Will was not executed by Basappa out of his own free will or wish; contention regarding defendant No.3 had filed a suit O.S.No.85/1989 claiming her share and on account of share not being allotted to her was only for the purposes of harassing first defendant on account of first defendant not marrying the daughter of plaintiff's husband's brother, she was having grudge :5: against first defendant and as such, present suit is filed; on account of the trick played by plaintiff, his father and mother were living separately and thereby his father - deceased Basappa had to live alone without company of his wife and thereby he mentally suffered and had untimely death; contention raised in the plaint that plaintiff had left her daughter with Basappa and third defendant was denied as false; defendant No.1 also denied that plaintiff used to visit the house of her parents and contention regarding love and affection of deceased Basappa towards first defendant came to be denied and prayer for partition of suit schedule property sought for by way of alternate relief also came to be denied on the ground that all the properties of family were not included in the suit and as such, suit for partial partition as contended is not maintainable. 6 Defendants-2 and 3 though represented by their learned Advocate, did not chose to file written :6: statement. Though there is no reference to the same in the judgment and decree assailed herein, trial Court records would disclose that defendants-2 & 3 did not file the written statement. On the basis of pleadings of the parties, trial Court framed following issues for its adjudication:
(1) "Whether the plaintiff proves that she is the absolute owner of the suit property as per the Will dated 08.12.1994 executed by her father?
(2) Whether the plaintiff proves that in the alternative she is entitled to 1/4th share in the suit property?
(3) Whether the plaintiff is entitled to possession of entire suit property or possession of 1/4th share in the suit property?
(4) Whether the plaintiff is entitled to mesne profits?
(5) Whether the 1st defendant is entitled to exemplary costs?
(6) What order or decree?":7:
7 Plaintiff got herself examined as P.W.1 and also examined 3 witnesses on her behalf as P.Ws. 2 to 4. She produced 4 documents and got them marked as Exs.P-1 to P-4. First defendant got himself examined as DW.1 and also examined two witnesses in support of his defence as D.Ws.2 and 3 and produced in all 18 documents and got them marked as Exs.D-1 to D-18. On considering the pleadings of the parties and on appreciation of evidence both oral and documentary, trial Court by its judgment and decree dated 09.06.2003 dismissed the suit. It is this judgment and decree which is assailed in the present appeal.
8 Trial Court found on appreciation of evidence held Will dated 08.12.1994 propounded by plaintiff in respect of suit property was not duly proved. It was held that there are suspicious circumstances surrounding the Will which can be enumerated as under:-
:8:
(i) Excluding other legal heirs by testator;
(ii) Health of the testator being not normal;
(iii) Propounder of the Will taking active part in execution of the Will;
(iv) Testator could not have executed two Wills.
Apart from the above, trial Court also found that other properties belonging to testator have not been included in the Will and recitals in the Will to the effect that other properties have been kept for allotment to the share of another daughter Smt.Mallavva - second defendant for which no evidence has been adduced and there was no justifiable reason for deceased Sri.Basappa to bequeath the entire suit property in favour of plaintiff by divesting other heirs of natural succession. It was also held by trial Court that plea put forward by plaintiff about the alleged partition between deceased Sri.Basappa and :9: first defendant had not been proved and plaintiff - P.W.1 herself in the cross examination had admitted about there being no partition between defendant No.1 and his father. It was further concluded by trial Court that evidence was not available on record to demonstrate or establish that Officer registering the Will had read over the contents of the Will to the testator admitting the contents of the Will in the presence of witnesses testator had affixed his signature and as such, trial Court held that mere registration of the Will is of no consequence in the absence of proof of registration and same having been done in accordance with due procedure by relying upon judgment of Hon'ble Apex Court reported in AIR 1967 SC 567. In regard to the alternate prayer for partition and separate possession of 1/4th share, trial Judge concluded that on account of plaintiff not including all the properties, suit for partial partition was impermissible and rejected the alternate prayer also.
: 10 :9 It is this judgment and decree which is assailed in the present appeal by the unsuccessful plaintiff interalia contending that:
(1) Will dated 08.12.1994 had been duly registered and attestators of the Will were examined including the scribe and hence, there is improper evaluation of evidence;
(2) Will was duly executed, attested and said attestors having been examined and their evidence having not been discredited, Will was required to be held as duly attested as contemplated under Section 68 of the Evidence Act, 1872 ;
(3) Testator was in sound state of mind and had also sound disposing state of mind at the time of execution of the Will and execution of will could not have been doubled by trial Court;: 11 :
(4) Testator himself had given 'wardi' to the revenue officers for entering plaintiff's name in revenue records;
(5) There was nothing on record to show that testator did not understand the contents of the Will and facts would go to show that testator was in a sound and disposing state of mind when he executed the Will;
(6) Finding of the trial Court that suspicious circumstances have not been removed by plaintiff is erroneous and contrary to evidence and records available on file;
(7) Trial Court committed a serious error in not appreciating oral and documentary evidence available on record in proper perspective and documents produced by first defendant and particularly, Ex.D-11 to D-15 and they were erroneously interpreted to disbelieve the claim of plaintiff;: 12 :
(8) Mere presence of the plaintiff at the time of execution of the Will by itself is not a suspicious circumstance;
(9) Claim of the plaintiff by way of alternate prayer namely, to grant partition and possession of 1/4th share by treating suit schedule property as property of Basappa and he having died intestate, plaintiff was entitled to 1/4th share in the event of findings of the Court below being affirmed with regard to execution of Will dated 08.12.1994.
10 Per contra, Sri K.L.Patil, learned Advocate appearing for first respondent would support the judgment and decree passed by trial Court and would contend that trial Court on appreciation of both oral and documentary evidence has rightly come to the conclusion that suspicious circumstances surrounding : 13 : the Will were not removed by plaintiff and the proof of due execution and as such finding of the trial Court cannot be found fault with. He would also draw attention of the Court to the evidence of P.W.2 to contend that he has admitted in his cross examination that Sri.Basappa was not feeling good and was feeling tired at the time of execution of Will and this itself clearly demonstrates that as on the date of execution of the Will, he was not keeping good health on account of which he did not possess sound disposal status of mind to bequeath the property in favour of the plaintiff. He would also elaborate his submission by contending that plaintiff's prayer for alternate relief was also rightly rejected by trial Court, since, admittedly there are other properties belonging to the family and they have not been included in the suit in question and deceased Basappa himself had filed a suit for partition in O.S.No.73/1998 which was pending and even in the present suit, right of the plaintiff is not foreclosed to : 14 : seek for partition and as such dismissal of the suit cannot be found fault with.
11 Having heard the learned Advocates appearing for the parties and on perusal of the judgment and decree passed by trial Court, on re-appreciating evidence both oral and documentary, I am of the considered view that following points arise for consideration:
(i) Whether trial Court was justified and correct in arriving at the conclusion that Will dated 08.12.1994 was not duly proved and there was no due execution of said Will and it was surrounded with suspicious circumstances and not removed by plaintiff?
(ii) Whether judgment and decree passed by trial Court dismissing the claim of : 15 : plaintiff for 1/4th share in the suit schedule property is just and proper?
(iii) Whether judgment and decree passed by the trial Court in O.S.No.78/2000 dated 09.06.2003 requires to be set aside/affirmed/modified?
(iv) What order? 12 Before proceeding to adjudicate points
formulated herein above, it is necessary to crystalise the facts which are not in dispute and they are as under:-
BRIEF FACTS One Sri.Basappa was married to Smt.Shantavva and they had three children namely, Smt.Yellavva, Sri Hemareddy and Smt.Mallavva i.e., plaintiff, first defendant and second defendant and above referred Smt.Shantavva is third defendant. Records would disclose that there are series of litigations amongst : 16 : members of the family and inspite of this Court affording opportunities to the parties to arrive at a amicable settlement and avoid further litigation over the properties seems to have fallen an deaf ears since learned Advocates have stated that there is no possibility of settlement and parties are not agreeing to enter into a settlement. Hence, the learned Advocates were called upon to address arguments and accordingly they have addressed their oral arguments as noted herein above.
Re: Point No.(i) 13 It is the specific case of the plaintiff that her father Sri.Basappa executed a Will dated 08.12.1994 bequeathing suit schedule property in her favour which is an agricultural land measuring 7 acres 14 guntas situated at Kusgur village, Ranebennur Taluk in her favour and on his demise on 28.06.1998 she succeeded to the said property as legatee under the Will and as : 17 : such, she claimed ownership over the said property. It was contended that on account of marital disharmony between Sri.Basapppa and his wife Smt.Shantavva, 4 acres of land was given to her towards her maintenance as per compromise decree passed in O.S.No.85/1989 and since then Sri.Basappa was living separately and not with his wife and children. It was further contended by plaintiff that relationship between Sri.Basappa and defendant No.1 was not cordial; there were several litigations between them and to take care of Basappa and his wife Shantavva, she had left her daughter at Kusgur village for the purposes of education and she contended that she used to often visit Kusgur village to look after the welfare of her parents. It was her contention that on account of said love and affection towards her and services rendered by her and in anticipation that plaintiff will take care of her mother Smt.Shantavva after his demise, her father executed a Will dated 08.12.1994 bequeathing suit property in her : 18 : favour. It was further contended that first defendant taking advantage that plaintiff was living at Karur village, had got entered his name in the revenue records in respect of suit schedule property and forcibly took possession of the suit schedule property. In support of her case, she got herself examined as P.W.1 and she also examined three witnesses namely scribe of the Will, two attestors of the Will. Said Will dated 08.12.1994 propounded by her came to be marked as Ex.P-1. As already noticed herein above, trial Court has given a finding that said Will was not duly executed since it was surrounded with suspicious circumstances. 14 Circumstance would be suspicious when it is not normal or has not come into existence in normally expected manner which otherwise would have come into existence in a normal situation or recitals of documents would indicate that it is not expected of a normal person to have executed. The Courts would not start with : 19 : suspicion regarding execution of a Will. Proof of the Will is required not as a ground of reading the document to afford the Judge reasonable assurance of it as being what it purports to be. The existence of a suspicious circumstance alone may not be sufficient.
Circumstances under which Will has come into existence, the person propounding the Will, exclusion of natural heirs, non inclusion of Class I heirs, restricting it to a particular property are some of the circumstances which may give rise to suspicion. It is for this precise reason job of the judge is to penetrate into the documents and ascertain as to whether there exists any suspicious circumstances and if so, has it been cleared or it remains as it is.
15 At this juncture, it would be necessary to note the celebrated judgment of the Apex Court in the case of H VENKATACHALA IYENGAR vs B.N.THIMMAJAMMA & OTHERS (AIR 1959 SC 443) whereunder their Lordship : 20 : have examined as to how a Will is said to be duly proved or what constitutes suspicious circumstances etc., It has been held in the said judgment 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 S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his hand writing, and for proving such a handwriting under Ss. 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 : 21 : nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 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. Section63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation : 22 : prescribed by S. 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.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally : 23 : tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English : 24 : courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive."
16 Keeping the principles laid down in the above case now let me examine as to whether trial Court has attempted to discern the truth and find out as to whether there is execution of the Will by the testator and the same has been duly proved in accordance with law.
: 25 :17 Under Section 68 of the Evidence Act, 1872 if a document is required to be attested and such document will not be admitted in evidence or in other words, cannot be used in evidence unless and until one of the attesting witness has been called as a witness for proving its execution and if there being any attesting witness alive and capable of giving evidence. Proviso to Section 68 mandates that it shall not be necessary to call attesting witness in proof of execution of any document not being the Will. In the instant case, document sought to be proved is the Will dated 08.12.1994. Attesting witness is a witness to the factum of execution of Will and not the contents thereof. As already observed herein above, trial Court has come to a conclusion that there are various suspicious circumstances and, at the cost of repetition they are enumerated herein below:
(i) Excluding other legal heirs of testator;: 26 :
(ii) Health of the testator being not normal;
(iii) Propounder of the Will taking active part in execution of the Will;
(iv) Testator could not have executed two Wills.
18 Plaintiff contended that she was taking care of her father Basappa who admittedly was residing at Kusgur village and plaintiff was residing at Karur village. It is also admitted by P.W.1 in her cross examination that defendant No.3 her mother was residing at Karur village. At one breath plaintiff says that she had left her daughter to the care of her parents and trial Court found that plaintiffs' daughter herself being a minor was in need of care and protection and plaintiff's contention appears to be unnatural and improbable and rightly so. : 27 : 19 Sister of the plaintiff is second defendant Smt.Mallavva. P.W.1 admits in her cross examination that her sister was residing along with her father till her marriage which was performed in the year 1988. But plaintiff contended that her daughter was taking care of her parents at Karur village. Inconsistency in the evidence of plaintiff is writ large. P.W.1 admits in her cross examination that her mother after taking share in the property as per compromise petition entered in O.S.85/1989 Ex.D.10 started to live in Karur village separately and as such, it cannot be presumed or accepted that her mother was living at Kusgur village. Even otherwise, when she was at loggerheads with her husband even according to plaintiff he further pleaded that her father and mother were living together cannot be accepted and as such, plea putforward by the plaintiff in the plaint has remained as a plea without proof insofar as the plea regarding her parents living together. The natural corollary that would flow from : 28 : such conclusion would be whether contention of the plaintiff that she was visiting her parents often to take care of their welfare as claimed by her is to be accepted or not and an answer has to be in the negative since admittedly mother Smt.Shantavva, wife of Sri.Basappa was not living at Kusgur village but was residing at Karur village. It is this circumstance which would tend to blossom into suspicious circumstance with regard to deceased Sri.Baspapa executing the Will in favour of plaintiff in anticipation of plaintiff taking care of his wife on his demise.
20 It is the contention of plaintiff that Will dated 08.12.1994 which came to be marked as Ex.P-1 was executed by Sri.Basappa in favour of plaintiff out of love and affection and also hoping that she would take care of his wife i.e., Shantavva (defendant No.3) after his demise appears to be too far fetched for reasons more than one.
: 29 :21 At the outset, it requires to be noticed that Sri.Basappa and Smt.Shantavva were admittedly not in good terms. It is because of this reason she was given right of maintenance by Sri.Basappa. Accordingly, compromise petition was filed in O.S.No.85/1989 as per Ex.D-10 which would reflect that 4 acres of land was given as maintenance and agreed thereunder that it would revert back to its owners -on her demise. When Sri.Basappa had severed his ties with his wife, it cannot be believed or accepted that he would be thinking about her welfare rather than thinking about himself and as such, this was another ground which gave rise to suspicion with regard to execution of the Will. 22 If plaintiff had been able to demonstrate either that Sri.Basappa was living with plaintiff and she had taken care of him, then, in all probabilities presumption could have been drawn that out of love and affection : 30 : towards plaintiff, Will came to be executed in her favour or if plaintiff had been able to demonstrate with positive evidence that it was she alone who was taking care of deceased Sri.Basappa, then this suspicious circumstances may not have arisen.
23 These two suspicious circumstances were required to be quelled by propounder of the Will. All influences are not unlawful persuasion, appeals to the affections or ties of kindred, appeals to a sentiment of gratitude for past services or pity for future destitution, are all legitimate influences which could be brought to bear on a testator to persuade him to make a disposition in favour of the propounder. It is this circumstance which will have to be proved by the propounder of the Will in the event of any suspicious circumstance surrounding the said Will. When there is nothing on record to demonstrate that testator was being taking care of by the beneficiary namely, plaintiff so as to earn his love : 31 : and affection towards her, Will can be held to be surrounded with suspicious circumstances. 24 It can be noticed that at the time of execution of the Will Ex.P-3 Basappa was not keeping good health. He was a resident of Kusgur village and not Karur village. Plaintiff was a resident of Karur village. Ex.P-1 came to be registered in the office of Sub Registrar, Ranebennur namely these are three different places and attestors and scribe to the Will are also of the village of Karur namely from the same village which the propounder hails from. In fact, scribe of the Will P.W.2 in his cross examination dated 17.01.2003 admits that when the Will Ex.P-1 was written, health of testator was not good and he was tired at the time of execution of Ex.P-1. Admittedly, testator was aged 70 years as on date of execution of Ex.P.1. To demonstrate that he was not keeping good health, defendant has produced documents which are at Exs.D-11 to D-15 namely : 32 : prescriptions issued by doctors which are not seriously disputed by the plaintiff. Perusal of these exhibits would indicate that doctor who has treated the testator has issued these prescriptions and has prescribed the patient i.e., the testator to consume medicines prescribed therein. When the health of the testator is not normal and was also suffering from age related problems, natural circumstance that would follow would be that he would not be in a sound disposing state of mind and as such, trial Court was justified in arriving at a conclusion that testator was not in a sound disposing state of mind. P.W.2 - scribe has not stated in his examination - in - chief that testator after having understood the contents of Ex.P-1 and on conclusion of his reading, testator affixed his signature. In view of the fact that scribe is not known to the testator and he having admitted that testator was not keeping good health, he does not explain as to who brought the testator to him for writing the Will. Obviously, finger : 33 : points out to the husband of plaintiff who is also one of the attestor to the said Will Ex.P-1 who admittedly has not been examined for the fear of truth coming out. In this background, conclusion drawn by trial Court that testator was not in a sound disposing state of mind deserves to be accepted.
25 Yet another suspicious circumstance is propounder and her husband taking active role or part in execution of the Will. Though P.W.1 contended in her evidence both examination-in-chief and cross examination that she was not present at the time of execution of the Will, same cannot be accepted since P.W.2 scribe has admitted in his cross examination dated 17.01.2003 that plaintiff was present at the time of execution of the Will. Very presence of plaintiff and her husband at the time of alleged execution of the Will by the testator would lead to suspicion and needle of it points to the plaintiff. In fact, P.W.1 herself admits in : 34 : her cross examination that testators are friends of her husband and they are from the same village i.e., Karur village i.e., plaintiff's husband's village. Plaintiff's husband having affixed his signature to the Will as attestor and plaintiff being a beneficiary under the Will would itself would be a ground to view this Will with suspicion particularly when plaintiff is beneficiary, which would also go to demonstrate that it is the plaintiff and her husband who had taken deceased testator to the office of Sub-Registrar Ranebennur for affixing his signature to the Will which got prepared by the plaintiff and her husband. It is in these circumstances trial Court, on appreciation of oral and documentary evidence held that suspicion with regard to due execution of Will Ex.P-1 points out to the plaintiff and smoke screen that emerged has not been cleared. 26 Perusal of the said Will available on record as per Ex.P-1 would also disclose that testator himself has : 35 : stated that his health condition is not good; he does not specify or state that he is in a sound disposing state of mind. In fact, recitals in the said Will would also disclose that he has other properties and he intends to give it to his other daughter namely defendant No.2 or in other words, he has expressed his intention that there will be one more Will that would be executed by him in favour of his second daughter.
27 At this juncture, it would be appropriate to refer to Ex.D-3 which relates to proceedings dated 07.02.1999 of the Office of Deputy Tahsildar, Kuppellur whereunder defendant No.2 sought for mutating the revenue records in respect of Sy.No.145 i.e., suit schedule property and it is stated therein that there is a Will dated 08.05.1995. Admittedly, this Will has not seen the light of the day and there was no occasion for the testator to have executed two Wills in favour of the plaintiff and yet : 36 : again it creates a suspicion with regard to the Will propounded namely, Will in question - Ex.P-1. 28 Trial Court, having examined the entire material on record has found that mere registration of the Will would not suffice and contents thereof requires to be proved by relying upon the judgment of the Apex Court reported in AIR 1962 SC 567 (RANI PURNIMA DEVI & ANOTHER vs KUMAR KHAGENDRA NARAYAN DEV & ANOTHER) whereunder it has been held as follows:
"There is no doubt that 'if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will : 37 : disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will Was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering."
29 Witnesses examined have not spoken with regard to registration of Ex.P-1 at all. Further, Registering Officer is required to explain the contents of a document presented for registration in case of illiterate person and perusal of Ex.P-1 would not indicate that contents of Ex.P-1 have been read over to the testator and he having understood contents thereof, had affixed his signature as mandated under Rule 73 of the Karnataka : 38 : Registration Rules, 1965. Hence, finding recorded by trial Court that due execution of Will has not been proved cannot be found fault with. Trial Court, on appreciation of entire evidence on record has rightly held that Will is not duly proved and on reappreciation of said evidence as discussed hereinabove. I do not find any good ground to deviate from the findings of trial Court or to take a different view.
Re; Point No.(2) & (3):
30 Trial Court, after having held issue No.1 in the negative has found that alternate prayer sought for by plaintiff cannot be granted namely for partition and separate possession, inasmuch as, admittedly plaintiff did not seek for partition and possession of the entire property belonging to the family. Only Sy.No.145 was sought as alternate relief and same has been rejected on the ground aforesaid which is just and proper. Hence, point No.(2) and (3) deserves to be answered against : 39 : appellant - plaintiff. It is needless to state that trial Court has not foreclosed right of the plaintiff to seek for partition and it is for the plaintiff to take such steps as she may be advised.
Re: Point No.(4):
31 In view of the discussion made herein above, following order is passed:
(i) Appeal is hereby dismissed.
(ii) Judgment and decree passed by
Addl.Civil Judge (Sr.Dn), Ranebennur in O.S.No.78/2000 dated 09.06.2003 is hereby affirmed.
(iii) Parties to bear their costs.
(iv) Registry to draw the decree
accordingly.
Sd/-
JUDGE
*sp