Karnataka High Court
M Radhakrishna S/O M H Manchigaiah vs Laxman Machigaiah on 17 February, 2012
Bench: N.Kumar, Ravi Malimath
IN THE HIGH COURT or KARNATAKA AT
Dated this the 17"' day of February, an 'M
PRESENl' T T A g
THE HON'BLE _JUsTzoE.N '
V V.
THE HON'BLE JUSTIEE
1; O_s.;A..'Nf_o. Vzzfpf '?:OQ':3.. "
BETWEEN: _
M. Radhal{rishn.a.;";V
Major """ . _ T. "f:.;
S/o M.i_H. Manehi.gaigH«<Vg . '
Residing a"L' Prernisres "
No.78 (Old No.94), V l
Diagonal Ro.ad,.V.V.._ Purarn"
Bangalore -- 560 004 V" ...Appel1ant
l " » ,vAditya Sondhi, Sri G.L. Vishwanath and
* " ' Smt. Manasa, Advocates)
AND}
____-4_
1. Larijnan Machigaiah
. Major
/ o late M H Manchigaiah
" Actually residing at No.44 / 3
Millers Road, Bangalore
2(a)
2(b)
Wrongly stated as
Residing at No.78
(Old No.94), Diagonal Road
V. V. Puram
Bangalore - 560 004
Dr. (Prof) M. R. Ramachandrayé
Since deceased by LRs V
Mrs. Sulochana Ramachanudra
W/o Late Dr. M. Ramachand_ra.u
Aged about 56 years -
R/ at No.44/3, 2*"1.._Cross . '
Millers Road
Bangalore 'V--. 560 Q46: A
Mrs.
Aged ab<>i_ui: s4iyea:s '.
No-.--e1 28;vi_AD'2"x;:A_Avenue
D / 0 «.__Dr.._. M ..VRan_1"acha'ndra '
No.3, Mountain View
California; 94Qo43--,._U.---s'.A.
Srnt .e .__Sl1arad_a4l Devi lllsirishnaswaxny
_. W/o lVI._Krishna'.Sv§?a1ny
Adult .. _ «V
' '/at'i--No.504,""New Diagonal Road
Ill' .Bloc"k, J ayanagar
A. 13a;:ga1o_r"e..-- 560 011
Srr1't'.i:'l.ia:tna Nagaraj
W/ovB. D. Nagaraj
" Adult
R'/at No.810, N. Illinois Street
A Arlington, Virginia 22205, U.S.A.
5(a)
5(b)
Mohan Manchigiah
S / 0 late M.H. Manchigiah
Since deceased by his L.Rs.,
Smt. Sunitha M 1 * ¢_ ~
Adult, First W/0 Mohan Manchigiah
Residing at 5482 2
3"' Main, II Stage
Vijayanagar
Mysore -- 570 017
Mr. M. Sharan Ku.:n:1r ; i 7
Adult S / 0 Mohan Manchigiah .
Residing at_No.548?,_'--, ' 'A
3rd Main,.EIAS.tage;_' V . _ V .
Myst}-re ' ' '
Smt. _Siiiakuf1fala'-- Shankarv . V
Adult 1" " _ .
W'/0 Dr. Ktippe Shankar '
C/ Q Dr. Kuppe '~Sh'an"kar
530"i._, F._Street',. Suite 312
V -- Sacramento. 958- 25"
CA. 95819,, l_J.S,A
SiiJ.t.--,Ceeta Gopal
-- Dr. D. Gopal
« Res_id_ir1g"at No.1046
Fountain Road
Jacksonville
~~ Fl(1;rida 32205 USA
H Smt. Karnala Rangarn
A Adult, W/0 V R Rangam
Residing at 23
10.
11.
A. -- Bangaiore
Aberdeen Circle
Flernington, N.J. 08822, USA
Srnt. Vijayalakshmi Ramakrishna
W/o M. Ramakrishna
43182, Parkers Ridge Drive
Leesburg, Virginia 2017 6
USA
Mr. M. R. Ramakrishna _
S/o late Dr. M. Ra:nachandr:--i*
Aged 47 years ._ p = A V *
Residing at No.44/3
2nd Cross, AMi11ersARoa_d. '
Benson V
Bangalore -:{35'6O C463 A
Mr. M, F<§_\V{7ive1{a1i.anCia¢_ ° V
S ,' o-Late_ Dri I Rarnachandra
Aged 46Iy.ear;93< i ' --
Residding at':NQ'.4v4u/ * A '
2" Cross', .Mi11fersV 'f?,_o'ad"'
Benson TOWI1 '. "
...Respondents
K. Rajan Kumar, Advocate for R1;
Parthasarathy, Advocate for 2(a), R3, 5(a) & (b); . " K. N. Subba Reddy, Advocate for R4;
" " R5 deceased;
R6, 10 and 11 are served;
R7 & R8 service held sufficient) i/ This OSA is filed under Section 4 of the Karnata£2a'~High Court Act, 1961, against the judgment dated by the learned single Judge in TOS 1_/1995'; = C > i This OSA coming on for l1earing- this delivered the following:
lw;i_l1t9__Mp_iE_N;I This is ffillddagaihst the judgment and decree passed*ih3§_ VSi°ngl'e Judge in TOS No.1/95 on 4"' April suitflof the plaintiff as prayed for.
2. , the purpose of convenience, the parties are . . referred to 'as theyvare referred to in the original proceedings. V. case of the plaintiff is that his mother Smt. Jayalalgshniamma w/o Late M.H. Manchagaiah was a permanent resident of Bangalore. She was originally residing ' at No.7 8(94), Diagonal Road, V.V.Pura_m, within the jurisdiction iv of the Court, for several years. She was a Hindu :religion. Her husband, Late Sri. M.H. Manchagaiah, 07.05.1983. She has four sons_and_ plaintiff is the second son. All other c;'hildre'11_lwer'e irn"ple'aded . as defendants--1 to 9.
4. Smt. social worker and founder of Vanitha SevaA.S.a.Inaj organization. Her husband of Karnataka.
She died C behind a Will dated 1" Will and testament duly executed her" of the witnesses whose names appear at the footthereof... The death certificate evidencing the if of Snit. dayalakshmamma Manchagaiah is produced.
of the Will dated 26.03.1989 executed by her an.dllWobtainCe--d'from the Court in Misc.No.935/ 83 on the file of the Arldl.City Civil Judge at Bangalore is produced. The Original Will had been produced in the Court by S. Ramaswainy iiiengar, Advocate, who drafted the Will and in whose custody V. the Will had been deposited by the Testatrix. Purs_u»a_ri~t_:t0_ the direction issued by the Hon'ble City {the aforementioned Misc.No.935 of 1993, the plaintiiffgdobtaineid certified copy of the said Will yvéhich «produced :'-ei.i_r1*z;tl'd1is A' proceedings. The plaintiff isjthe soleedlxecutyor' fnarnedl in the Will.
5. TheA.deceased,:.was."V.a has 11 children, out of whomi: had emigrated to USA in had become an American citizen by name Valarie and had and Kamala. After the death. of Sautl1ya'M.anchagaiah, the petitioner and his family lost . - 'contact themvflarid presently their whereabouts are also not Manchagaiah passed away in 1983 in USA. As the of the Testatrix, the property bearing No.78, Diagonal Road, V.V.Puram was to be developed and each son entitled to one apartment and after their lifetime, the same 'shall go to their respective children. The executor had to keep l./A one apartment vacant and ready to be used as a Guelstml-louse for the daughters who are staying in USA wh¢n§£}¢r«' India. In so far as Mysore property Testatrix directed that the said l' be developed and the same: shalllll;ellV't1se<:1p.v'1oy; whenever they visit Mysore. sons haxreiponlylélife interest and have no absolute far_ as theudaughters of the deceased are conegpfjgd, use the Guest House to be{_" demolition of the existing "the estate of the deceased whichgjvare hands of the plaintiff as executor jcllllldl .:dece'ased possessed at the time of her death, are setpout..inAthe'"schedu1e to the said petition. To the 'l V' "the Aplaintiffs' knowledge, no application has been filed far to any other court for grant of probate of the Willllorgfor grant of letters of administration relating to schedule properties. The plaintiff would be desirous of "ii .obtaining probate from this Court. To the best of the plaintiffs l lknowledge and belief, the deceased had not executed any other m/ Will in respect of which the probate is sought for. 1116.: :plaintiff undertook to duly administer the property deceased Smt. Jayalakshmamma Manpchig-3--ia'h...\ . full and true inventory thereof and Hon'ble Court within six months fromfdfthpe §"lv:'ct[{=,':
probate and also render to Hgnlple the true accounts of the said one year of the said date. Th_erefore..._ of probate of the Will annexed the schedule is the house situate at Bangalore.
6. filed statement consenting for grant. of prob_ate....* Hou/'ever, the other defendants entered '=.app:earance~ and contested the probate petition. Therefore the f_or'_.grant of probate was converted into suit and the__"defend'aur_its were pennitted to file their written statement. Accordingly, they filed detailed written statement contesting the i C of the plaintiff.
10
7. The case of defendants~3, 5, 6, 7 , 8 an.d~.i$l-«lli»s~V.that plaintiff and the first defendant immediately the job, deserted the parents and used to deliver threats to the parents of a View to exploit and to take away lthel' araluablei furniture. The parents of theyfgwere not in a position to withstand._._the of the "plaintiff and that of the first defendant V(»5..;§3fNo.6891/80 in the Court of the injunction and also After passing of the said the first defendant did not have 'relationship with that of the parents of these .defenlda.ntsV.exceptl"attending the death ceremony of late V' 'S1'Vj'»/_\..':l.\/I€l"1".\.Ch.l'g£1l21lg1,' Jayalakshmamma had not executed any 26.03.1989 appointing the plaintiff as Executor. 'l'li_elllplai.ntiiff. a View to knock off the property belonging to late Syntl. Jayalakshmainma, created a Will and if it is a Will executed by late Srnt. Jayalakshmamma, by forging the 'signature of late Smt. Jayalakshmamma. The signatures found XV 11 on each page of the Will clearly discloses that signatures are forged since one signature does.--nHotA the other signatures. if 0
8. Late Smt. Jaya1al:sh.rrg1a1nr1i_afwas by the 7th defendant till f£.1'I1'(.,;l:'l'fO the utmost satisfaction of these late Smt. Jayalakshmamma €X¢:C1l%[._€:€1 jvyvdated 10.09.1989 bequeathing_gInos:t"aof to her in favour of 7th dated 10.09.1989 is in accorc5?.:ance'_'fA she disclosed to these defendan As late Smt. J ayalakshmamma had not giyenany to the plaintiff under the Will dated 101909.1'989._theflplaintiff is not entitled to any relief in this
-=d.:A_f.ter the 11th day ceremony of Smt. the plaintiff brought the Will and also hand"ed:"over xerox copy of the said Will to all the defendants eyjgcept the first defendant. The first defendant insisted these respondents to accept the said Will. Immediately, after seeing 3/ 12 the Will these respondents informed the plaintiff that Will is forged and concocted one since the signatures"._.onV the Will is not the signature of late Srnt. Jayalakshmarnma. . the relationship between the plaintiff andl..t:l'1at. ll these defendants was not cordial, that late Smt. Jayalakshmarnniayv: had the Will in favour of the plaintiff. V by late Smt. 7"' defendant is her last Will thellsailcl nlolfpro-p'erty has been given to the plaintiffis not entitled for any of the Therefore they sought for dismissalof the sVu'itj,'V. W"
The ll7lVt""'defendant also filed a separate written = admitting the relationship between the of children, he categorically stated that the Will s'aidi- to have been executed by Smt. Jayalakshrnamma on '.?,(:3.l'C)"A,'«3.l989 is a forged Will set up by the plaintiff in order to lf:nock off the properties belonging to late Smt. l/ 13 Jayalakshmzunma. The allegation that the onginalévwillélldated 26.03.1989 was in the custody of S. Rarnaswarny correct. After 11"' day ceremony of the"'vdxe:ath'V:ofg Jayalakshrnainma, the plaintiff pi l' alleged Will and shown thevsarne other daughters and the irnpleaded as defendants-2 to 6 and _ He furnished a xerox copy of the said ayalakshmarnma had thegsaid Will the plaintiff was appoih.ted_"_" 'Will. Therefore it is not known filed by the plaintiff in the Court 'of Bangalore and had taken hand summons s_:erveT'the- sarne on S. Ramaswamy Iyengar and got 'i V' the through Ramaswamy Iyengar as if the "said wi11:p'm?as:1;; the custody of the said Ramaswamy Iyengar. The Miscellaneous case is collusive in nature, to create evidence to show that the plaintiff was not aware of the vegcecution of the said alleged Will and it was in the custody of S. Rainaswamy Iyengar and he is innocent of the execution of the §\/ 14 said Will till he obtained the certified copy of the Wivll._Cfrofm.vthe City Civil Court in the above said case. The forgedv and concocted and therefore is not entitled for"a1iy'_relief;' _ if
10. The allegation thatxthe 'Will affidavit of K.C. Bhaskar and islvjnot correct. The attesting witnesse-sllliwhoy friends of the plaintiff have filed that they have attested the td helpfthe' though the Will dated 26.03. 198% is only a concocted and create.tllllalf_v1<l?A1C J ayalakshrnamma has not executed the plaintiff as executor. The ,si.gnatu"re.s ofel'ate'-Srnt. Jayalakshmarnma is a forged one. {date onpwhichlmthe said Will was executed was not typed, llw1_'i_tV.ten in the ink without any attestation. The signaturels" on one page does not tally with the signatures foundofi other pages. The different types of signatures found i.nlde;ach page of the Will clearly show that the Will dated 26.03.1989 is forged and it is not executed by late Srnt. l/ 15 Jayalakshmamma. The plaintiff and the first defendant'-were not in good terms with late Smt. Jayalal(hma:fI:irna'iV.'and-'her husband during their lifetime and they never" their parents while they were alive at any point of 'thgere if is no reason for late Smt. Jay'a_l_akhrri-amma appointing the petitioner as plaintiff filed O.S.No.2654/94 in City HvCivil Judge.
Bangalore City __for respect of the portion of Road, V.V.Purarr1.
Bangalore: and also made an application tehrnplorary injunction. Temporary the said suit was vacated on the applicationu"filedby defendant. In the said suit, this gdefelnd.antl'i'filed detailed written statement disclosing the facts Ito. the plaintiff never looked after the parents at any time after he secured a job. Plaintiff never conducfted himself as a son with the parents when they were These facts have to been disclosed by the plaintiff in this ?petition. As the parents of the plaintiff could not withstand the l'/ 16 criminal acts, threats and the interference of the plaintiff~V.and that of the first defendant, filed a suit in 'fiolldv No.338/79) in the Court of the Civil fjudge, .Bang;;a1ofe:, against 1 the plaintiff and that of the first»._defen..cf'.ant.'fforal'd:ecree_Alof 1 permanent injunction. __said'-suit xv§l's'._:
25.08.1981 in favour of the theplaintifffgrestraining the plaintiff and the 'interfering or committing any acts of the .1-gchedule property where the along with this respondenf any of the belonging or he said property. The plaintiff and Vfirst entered the premises bearing No.7_8,.. Diag"onal'VFioa.d, till the death of the mother of this '1 1' respondent» Qn 23l.1'()"L1993, except on the date of death of his «.father of died as he could not withstand the' threatsv. criminal acts of the plaintiff and the first defendant. He has set out how the act of the plaintiff and the firstfdefendant had adverse effect on other family members as ivell as on their mother. Therefore he sought for dismissal of }\'/ 17 the suit and he wanted the Court to appoint him as in pursuance of the Will dated 10.09.1989.
11. On the aforesaid p1eeidin;gs,.. :'th'c_b1earnédf».__Si:n;g1e Judge framed as many as five 'is's1_1es, whichvareVV2ist:ou.nder3:
1) Whether the.' pza;:;1'tyf_j' proves that"
Jayalakshmitrnma executed a valid will on 939?
2) _ 5 & 7 to 9 It pro:_l2e;V """ ~ ..1M'gnchlgaiqfL~gxectlted "Va valid will dated * she was in sound mind and the same is last' wiz-t?"' :
A _V *.gW--.'."Lether the defendants prove that the will 26--3~1989 is a forged and concocted Pdojlcurnent as alleged in the written V statement?
, -- 4) Whether the plainttfi is entitled for grant of probate as prayed for?
18
5) To what relief/ reliefs the A4 entitled to? if '
12. The plaintiff in order examined himself as P.W--1, exarnined the the Will S. Ramaswarn-y...glyenpgar,:A.l{Sdvocate as"PW'i and also examined two attesting and 4 and produced 45 as Exs.P--1 to P-45.
On behalf of exarnined as D.W--
l. 'three'-iivwitfinesses and produced 336 docuinents, as Exs.D--1 to D-336.
iv The"-vlearncd Single Judge on appreciation of the ~ ;aforesaid, documentary and oral evidence held that the Will 1' plaintiff stands proved as the evidence of attesting witnesses coupled with the evidence of the scribe "p¥ro4ved"1due execution of the Will. He also held that the Will set the 7"' defendant dated 10.09.1989 is not proved. k/t 19 Therefore the decreed the suit of the plaintiff as Aggrieved by the said judgment and decree Single Judge' the 7m defendant has 'preferred 'this.:app'e:avI'._ if
14. Learned counsels ' the '-appellant V i ; impugned judgment and the single Judge contended that the had 5 sons and 6 daughters. Her relati.o.ns_lii.p was strained. When that case' s'ct~iip by the plaintiff the entire to the total exclusion of other explanation is forthcoming.
Therefolreg the Will.» by the plaintiff is surrounded by s,u.spicious_ circumstances which has not been properly '' V' cuslpléiiea b'y._the p1"ai'nfiff. In fact, the parents of the plaintiff hadllto,_fi»l.Ve for injunction and obtain a decree preventing therrplaintiffrfrom entering their house. There is no evidence on record to show after the decree there was reconciliation between the plaintiff and his parents which brought him liearer. In fact, the plaintiff as per Ex.R5 has cast aspersions lx/ 20 on the character of his own mother. The plaintiff never'-resided with his mother in the family house. In the Court below committed a seriousmerror that . Will is proved. In fact the scribe --
has admitted that the signatt'-'res__Vfound\ P11 do not tally with the other by the plaintiff in the witnesVs*--..b:ox'. fact that Smt. J ayalakshmainma had she was not able to sign. discloses that the preparation of the Will.
dudge failed to take note of these are borne out from the record andA.committe.d aesseriousiverror in holding that the Will set up . if by't~--the5»-."pla'inAtiff stands proved. Therefore, the said judgment Vandldefcree is..lia.ble to be set aside.
15. " _ Per contra, the learned counsel for the plaintiff- respondent submitted that, under the Will the other children are not excluded. An obligation is cast on the plaintiff to u./ 21 develop the property in Bangalore and allot apartm.en_ts.,Tto.vvthe sons and on her death to give it to their children: for the Mysore property, an obligation is_cast_fon lplaintiffito . develop the property, keep one portion:1'as.:a tzybe T made use of by the daugl':tei=s_ whe-flit' therefore the contention that other have been completely excluded on the face of it erroneous. Secondly is the person who took trhotheri aftervlthe----ciieath of her husband. Though for some time, the relation thelllllvifetime of his father. The plaintiff' "medical needs of his mother. Therefore, the executed by her in his favour which
- is "clearly proved bymexvamining two attesting witnesses coupled of the learned counsel who prepared the Will, therfindinglirecorded by the learned single Judge that the Will standstprproved is legal and valid and do not call for any V' '-- T_ interference. V 22
16. In the light of the aforesaid facts andV~.th_e'~rival contentions, the point that arise for our appeal is as under: --
Whether the propounder ioffthe ».Will'4the if plaintiff has proved due_V:"e:z;ecution of the dated 26.3.1989 marked as_Exu.Pl in fllllis case and has he ;._the~._. suspicious circumstances surrohund-iIfg;' the'wdL1e" -execution of the Will? V'
17. V"betvV\feen the parties is not in dispute. dispute that the two items of the property one another at Mysore exclusively belongs to'u'S.rnt.V.hdayalaltshmamma. Smt. Jayalakshmamma to $ri"'Mf.VH.Manchigaiah~ a retired Chief Engineer 'ln.,tl1e:: iiarnataka. They had 5 sons and 6 daughters. It also. record all the children were educated, married and all they daughters are in America and the other sons are also welli; placed in life. It is also on record that the relationship 'between the plaintiff and his parents was strained. In fact they ll/i 23 were constrained to file the suit 08 No. 338/ 1979 old.l_nu_mber, and O.S.No. 6891/ 1980 new number for a injunction restraining the plaintiff from peaceful possession and enjoyment"al.C§f 8' Bangalore in Diagonal Road. Vfl1n_e on 25.8.1981 which decree marked as Ex.R4. Ex. R5 is a dated addressed by the plaintiff to his father various acts of omissions. «letter also accused his mother and cast The plaintiff does not dispute" But, his case is thereafter! there In order to demonstrate reco:-1ciliatioi1._a noacce-ptable evidence is placed on record. The evidence o"n_whichV"reliance is placed is the photographs taken plaintiffs daughter's marriage at the Woodlands yvhetre Vreciejaption had been arranged where all the family members are there together. Similarly, photographs are produced to show that the family members were all present on the occasion of Ganesh Chaturthi. Similarly, photographs are l/ 24 produced to show that the faniily members sat togVetl1er~.and exchanged pleasantries. Documents are produced' some tunes the plaintiff has paid thegpelectricity' ----b:illp,ll'v}ater bill; . telephone bill, purported to be lof li'is..:'moth'erI' these if documents cannot be construed as, Wplrolof' reconciliation between the At best it could be said in spite Qnvvviloccasions like marriage and festivals, forgetting mixed freely. At the same time: there on record to show that the other children and their parents On the contrary, the book published on tl1e_.a_:nniVersary of Manchigaih shows both father. andlllfmotliler loved it their children, treated them equally . - anvdlithey were noblemslouls.
l8_y V. the background of this evidence on record, if under the Will--Ex.Pl the mother bequeaths two valuable vi.I_lil:fi.OVabl€ properties to the plaintiff to the total exclusion of the other children, it constitutes a suspicious circumstance. EL/o 25 The burden of dispelling the suspicious circumstance.is«._:onthe propounder of the Will. In this regard, the offered by the plaintiff is the other gchigldreril from bequest. In support of his if the Will are relied upon. A careful the Will make it clear that plaintiff to develop both the lVly.sor"e.after 'developing the property, one portion /é{1es'thouse to be used by her 'll/I'y'sore. In the Bangalore property, the plaintiff to put up the apartiznentsf " apartments he was expected to allotlonge'apartme~tto:;the"remaining 4 sons. After the death of those children were entitled to enjoy the property. the "title n'eVe'r" was transferred to the sons or the 6 lvflfter their death, the property has to revert back to tlieplaintiff, It is a pious wish of the testatrix. In categorical terms _ she has given absolute freedom to the plaintiff to i.mp'l_ement or not to implement her wish. His decision is final. in the Will, no reasons are given for excluding her other V 26 beloved children with whom she had no grievan.c_e.t'_:at_ all. Except the aforesaid evidence no other evidence"i's~lgiver;t___ for excluding the 10 children by Smt. Jayalakshmarrimahi The only reference we find in the Will is, her: elclestivson migrated to America in 1963 married a foreignerfand he 1983 and thereafter they have track of members. The evidence on recorduulishogys not residing with the testattjtx after ttptjp-'titty.'husband. On the contrary it with her. Even otherxvisej shows that she was taken care or grand children. Under these the. absence of any acceptable explanation, [the has not dispelled the suspicious . - circumstances surrounding the due execution of the Will. V. so far as the signatures in the Will is concerned, it is" categorically denied by the defendants. In order to prove it signature, the plaintiff has exarnined two attesting witnesses who are sister and brother. He has also examined 27 the scribe of the document, his advocate. Their "ev_id--ence discloses the author of the Will was the advocateilofl who later became a friend. PW2--Sri..R_a1na5swarny: lvengar stated in his evidence that he wasv:'worjking ir..th¢"ch>;jm1;e::s of King and Partridge. Plaintiff "camue there 'as a looking his case. He knew lnitiially he had only some company "h_ev..re~signed from King and Partridge with effect the advocate for the plaintiff in if matrimonial dispute had started.longgjbeforejilthelpilaintifflapproached him. But, in the he appeared for him in that suit. The' against him. The appeal was filed ~before""th:e Divstriet Judge, Shimoga and in that appeal he «appeared for the appeal the matter was settled by 'which ended in a divorce. He knows the plaintiff He regarded the plaintiff as his friend. The plain"tif_f¥ told him that his mother wanted to execute the Will 'before he brought his mother to him. His mother calne along 'With him in the car. She walked from his car to his chambers. lg} 28 The parking place was visible through his window. not find that she was physically disabled. She Carrie the plaintiff in March 1989. Ex.P1.was__typedWin'* On the second occasion when .
along with the plaintiff in the_c'<a_r. fhellattesiors.;.al..soV the same moment. On that dayialso the walking from his car. He do of Will before.
He showed the Atestatrix. iehe had to put her signatures. after he showed her the places. he examined the Will to find hadlllbeen properly executed. He "at"Ex.P--1 (c) was differently put from the ,signature..:vput7' at."-Ex".:P-l (e). The signature at EX.P-1 (D f if appeai:'s=to'l' be differently put from the signatures put at Ex.Pl :(c_). discussion with the testatrix, he knew the plaintiff be one of the legatees under the Will. He did not suggest registration of the Will. At the time the testatrix .p_u't"p_her signature to Ex.Pl in his exclusive charnbers, plaintiff was not present in his charnbers but he was present outside 29 the exclusive chambers. Probably the plaintiff "after the execution of Ex.P1. Testatrix gave him his if -1-
20. From this evidence it Clear, .
took his mother to his advoca'te§-.plainti.flflspoke:
about the intention of his mother-lt:o is he who took the mother to hisA"axclvocate;V;pw 8 or 10 days he took his mothersialongiwithtithe-ltvvo witnesses in his car to his not present inside the chambers and witnesses affixing their outside the chambers. This undisputed clearly demonstrates the active role played by the plainltiffllinlexecution of the Will. ' "4VS1tiisheela Bai--PW3, one of the attesting witnesses states the testatrix since 1950. About 4 or 5 days earlieiivpto the execution of Ex.P1 Smt. Jayalakshmamma had expressed to her, her intention to execute a Will and told her it that she might have to come when she executes the Will. A day lx/ 30 prior to execution of Ex.Pl she asked her to come along with her younger brother Sri 4' Jayalakshmamma took her to her _ Gandhinagar. It is the plaintiff to.,o_k=~ S of Smt. Jayalakshmamma toithe adyoea'tes' She does not know' the aof Smt. Jayalakshmamma thefradvpocate for about 20 minutes in his may be a peon called and her brother went inside..xtVh:e.ll not know when Ex.P1 was drafted Afipjt kI_1voylv who drafted or typed Ex.Pl. The adycoate Jayalakshmamma would sign on the Will' asked" her to watch it. She did not ask Smt. Jayalaiishrhammavvlabout the contents of Ex.P1. Her brother V"w:hile Smt. Jayalakshmamma signed on Ex.P1. She doeslingotlllknow whether after they signed Ex.P1, plaintiff ca1ne"ir_ito the chambers. She remembered to have met him 3 ' -- outside.
31
22. Similarly, sn K.P.Bhaskar-PW4, a 1-merit of Indiranagar and sister of PW3 is another According to him when he was in h_j.s..s_isterfshouse, from there. 2 they went to the house of the advolc-,'ate_y's"'r d When they were sitting in the lounge 'inxfrontbof Avti1e.VVadr§/ocatedéd' chambers, somebody called the"m:_1nside;." and his sister went into the cha111ber's_.f7Atithat Jayalakshmamma was in the chanlbers. VA ~uen*the. ;dv;$'¢até"--'tc1d them that Will is prepared and he7'a_ndV hissister=have"to sign it as witnesses.
Srnt. Will. Then the advocate;
gave the_document'gto,:the_m, _' Then he and his sister affixed their signa'tures.._ «He. a:d:fiits"'that he do not remember the date on which E§<.P1'Was executed. He was residing in Indiranagar. toolrdhdim and his sister from the house of his house of Smt. Jayalakshmarnma in his car. When they the house of Smt. Jayalakshmainma they were sittingin the car and Smt. Jayalakshmajnma joined them. did not get down from the car and go inside the house. }When he went into the chambers, the advocate and Smt. u./ 32 Jayalakshmamma were present. Himself and hisfsisilter'-were also present. The Will was not prepared in their it was already been prepared. The...adVocate the 1 before Smt. Jayalakshmamma and7aske'd»l1erilfihe 2 signed in his presence. Therilsigned the explained the contents of dayalalishmamma. The document was "his'A:lpresence. Prior to the date of Ex.Pl heiknewitheihplailitipfff 25 years. Both of them wglgigl Club. He had no acquitence §t~..SrI'it."Jayalakshmammal He do not not a family friend or close associatc.__of the §f..S'r.«.f. J ayalakshmainma. 2.3'; ..This eyidence on record clearly demonstrates that the plaintiff, has obliged his friend by affixing hi-sJsigna.tui.'--ellto EX.Pl. Absolutely no reasons are forthcoming why signature of the testatrix found in the Will are not isimiilar in all pages. There is nothing to indicate that, even the advocate after preparing the Will read out the contents to her l[/ 33 and after fully satisfying about the contents, she.4jaffixedVV'the signature in token of her acceptance. The Wil'l*--is :jEng'iisl1., whereas her signature is in Kannada.' 1s;ri@5t" Vvuheethe1= up .9 the testatrix was able to understandzlinglish or:"al51§"er.¢Qd'*iread English. In fact it is not in dispute ti/JI1§,\\\ sulfferediia paralytic stroke. After that -she not able to sign. According to the was in August 1989 whereas the Will hasgco:.r_n:e in March 1989.
There is she had a stroke only in Au€g.1,is5th signature of the testatrix is found._ronl_thAe§ not similar, even the size of the signature an impression that the person who has signed the document was not having complete control over' her fingersivatmthe time of putting the said signature. Similarly, 'th'e_re.. is no evidence on record to show the mental cAonditicn:o_f'lV'the testatrix. No doubt, one of the attesting witnezssgivvho is a doctor has stated that she was in a sound State of mind, not only at the time of executing the document, but even thereafter. The advocate on his part has stated that u./ 34 he saw through the window of his chainbers the getting down from the car and walking towards his is made from this evidence to deI_n.o.n_strate'th"e _ was in a sound state of mind. To~_sh{o"w.'she._wa_s' rc:al.ly'*1in a 2 sound state of mind, was al')fle<-.to walk into the chambers, independent evidence is forthcoming. The signatu:t'e_s in_'g'tllieWi1l is not similar in all the pages. Why from one page to another and her signature in a proper forthcoming. Under these Qfllfelstablishing that the testatrix was inla sound and the Will has been executed is not Afully estafilished.
- - 4ll'1~nvlthe light of what is stated above it is clear there is._an on the part of the plaintiff who has taken an activevvinterest in preparation of the Will and its due execution. .Hpils"Aevidence is not satisfactory and his evidence certainly does if not dispel the suspicious circumstance. The learned single K/r 35 Judge has not properly appreciated this material on record. He proceeds on the assumption that. txvo\...';attei's--fir1g witnesses are examined, even though the advoc'ate.vvho' drafted to the Will is the advocate of the 'Will?-that should not matter and therefoprepphe has of plaintiff. As the said judgmentfiolf-lthe..learned Judge does not take notice of the rnate'rial'A:levidence on record, the said judgment suffers vfroxn of..holn5application of mind, non--appreciatior:£'of record. Therefore the learned a finding that the Will is duly cannot be sustained in the light the on record. Therefore, the said finding is he1'eby~set * " the seventh defendant has also set up a thing has not been accepted by the learned single Judg'e,,Ji~n fact after adducing evidence in proof of the Will an vattempt was made by the seventh defendant to wriggle out by W 'saying in these proceedings the validity of the Will cannot be hfi/.
36 gone into. ' However, at the time of arguments..'beI1:)re. _ this Court, the said Will was not pressed into se1_*_,--'ir:e.'A"
the net result would be. the Will setup by_--the""andv'thc Will set up by the seventh defendantfare properties which are leg-"t_ by J ayalakshmamma would devolyé«.l'Qyn_hert1egal_ in terms of the provisions of the
26. pendenoy of this appeal, passed, the appellant iss it from the month of JanuaryV_:2'0(l)7'. to be kept in a Nationalised Bank. by Fixed": Deposit for a period of one year. Ageoordlinglydp thelamount is being deposited. Now that the 'appe1lat.LhaVs-.succeeded in this appeal a request is made for amount. It was opposed by the other side contending that he is enjoying the property to the total Vexolusion of others. It is also submitted that first defendant- l§Ramachandra's son has filed a suit for partition and separate R/.
37 possession of the legitimate share in the property"in:"'QlS No. 6222/2010. In the said suit as the share offfihe parties in the properties would_be_ decidlechii'jit\"wou1dV be appropriate for us to keep the amount:"which,isA.in depcositiipin a fixed deposit, to be distributed~._among the the decree to be passed in the it the High Court registry is eseie '§ii~1t the amounts so far deposited which already? is accumulated and is keptflin lsvolfthatjit would earn interest and the the benefit of the interest also in the 'event oinlthegdecree passed in their favour. he that View of the matter, we pass the following . orderf; --
CL) .2 he-pjippeal is allowed.
" The judgment and decree of the learned single Judge in so far as holding that the Will dated 26.3.1989 -- Ex.P1 is proved, is V 38 hereby set aside. His finding that the dated 10.9.1989 is not proved remdifig tact.
:51.