Karnataka High Court
S Nagalakshmi vs C S Venkateshababu on 2 April, 2014
Bench: N.Kumar, B.S.Indrakala
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 2nd day of April, 2014
PRESENT
HON' BLE MR. JUSTICE N. KUMAR
AND
HON'BLE MRS. JUSTICE B.S. INDRAKALA
RFA NO.890 OF 2008
BETWEEN
S. Nagalakshmi,
Aged about 68 years,
W/o Late Sri C. S. Shankaranarayana Setty
Residing at S.V.S. Complex,
B.M. Road,
Channarayapatna,
Hassan District - 573 116 ...Appellant
(By Sri S. S. Ramadas, Senior Counsel for
M/s Sundaraswamy & Ramdas,
Sri K. Anandarama, Advocates)
AND
1. C. S. Venkateshababu
Aged about 48 years
2. C. S. Adiseshakumar
Aged about 43 years
2
Both sons of late
Sri C. S. Shankaranarayana Setty
Residing at S.V.S. Complex
B.M. Road
Channarayapatna
Hassan District - 573 116 ...Respondents
(By Sri Kashyap N. Naik, Advocate)
THIS RFA IS FILED U/S.96 READWITH ORDER XLI
RULES 1 AND 2 OF THE CODE OF CIVIL PROCEDURE,
1908, AGAINST THE ORDERS DATED:19.04.2008 PASSED
IN O.S.26/2004 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-1, HASSAN, DECREEING
THE SUIT FOR PROBATE IN RESPECT OF THE WILL
DATED: 05.09.2002.
THIS RFA COMING ON FOR ORDERS THIS DAY,
N. KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This is defendant's Regular First Appeal challenging the Judgment and Decree passed by the trial Court holding that plaintiffs are entitled for probate in respect of `Will' dated 5.9.2002 executed by their father Sri C.S.Shankaranarayana Setty and accordingly decreed the suit of the plaintiffs.
3
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The schedule properties belonged to late Sri C.S.Shankaranarayana Setty. The plaintiffs are his two sons. The defendant is his widow. Late Sri C.S.Shankaranarayana Setty had four daughters by name Shashikala, Jayashree, Vasudha and Veena alias Dakshayani.
4. The two sons filed petition in Probate P & SC No.3/03 under Section 272 of the Indian Succession Act for grant of probate of the Will of their father dated 5.9.2002. The case pleaded by them in the probate petition was that, the plaintiffs are the only sons of late Sri C.S.Shankaranarayana Setty. Their father died on 8.10.2002 at Trinity Hospital, Bangalore. He had executed a Will on 5.9.2002 at Hassan in the presence of two witnesses named in the `Will'. The original Will executed by their father was with their senior paternal uncle. The said Will was handed 4 over by the paternal uncle just recently. As per the recitals of the said Will, plaintiffs being the only sons of late Sri C.S.Shankaranarayana Setty, are entitled to get the schedule properties of the testator.
5. The executant of the Will had the permanent residence at Channarayapatna town. By virtue of the said Will, the petitioners approached the Town Municipality, Channarayapatna for getting the Khatha of the schedule properties changed to their names jointly, but the said authorities, in turn, asked the plaintiffs to get the probate of the Will executed by their father. Hence, left with no option but to protect and preserve the schedule properties from being wasted or damaged, plaintiffs filed the petition for grant of probate. The schedule properties being immovable properties situated at Channarayapatna town, Hassan District which have come to the hands of the plaintiffs by virtue of the `Will' was valued at R.33.56 lakhs. Hence, fee of Rs.25/- was paid on the petition. The original Will along 5 with declaration and also the statement of witnesses to the Will was also submitted. Therefore, they sought for grant of probate.
6. When the Court ordered notice of the filing of the petition, the same was duly published in the newspaper. After the said publication, the wife of testator of the Will Smt.Nagalakshmi entered appearance and filed her statement of objections. She contended that the averment in the petition that late Sri C.S.Shankaranarayana Setty executed a Will on 5.9.2002 and given to the custody of his brother is false. The said Will is a fabricated one. It is true that Sri C.S.Shankaranarayana Setty died on 8.10.2002. The Will dated 5.9.2002 is concocted and fabricated document. The witnesses to the said Will have colluded with the plaintiffs and got those documents created. This document has come into existence subsequent to April 2003 i.e., subsequent to the death of the testator. The witnesses who have attested the said document were not in cordial terms 6 with late Sri C.S.Shankaranarayana Setty. One of the attesting witnesses Seshachala and his sons are having close contact with the plaintiffs. The plaintiffs are acting according to the advise of the said Seshachala. There was a litigation between Ankam Venkatachala Setty and Jagadeesh and Venkateshwara Lodge. There was a feeling that the testator was supporting Ankam Venkatachala Setty in the said litigation. Therefore, there is enemity between Jagadeesh and the testator. The allegations in the petition regarding Khata transfer is contrary to what is set out in the petition. The plaintiffs knew that their mother also has a right in the property. Though she is a necessary party to the proceedings, they have filed this petition without impleading her. The whole object is to deceive her and to mislead the Court. On that ground, the application is liable to be rejected.
7. The plaintiffs out of the money provided by their father have earned lot of money. They are also very 7 influential in the society. They have political contacts. The 2nd plaintiff was nominated as a member to the Chennarayapatna Town Municipality. Therefore, they have brought pressure on the officials of the Municipal Council and got the things done in their favour. The plaintiffs' paternal uncle Sathyanarayana Setty was responsible for differences between the plaintiffs and their father. He was responsible for partition in the family. The said dispute was resolved on 15.4.1988. Even thereafter, when the plaintiffs made fresh demands, the differences arose. Thereafter, Sathyanarayana Setty resolved the dispute. But because of the conduct of Sathyanarayana Setty, the relationship between the plaintiffs and their father was strained. The plaintiffs with the assistance of Sathyanarayana Setty were acting according to his dictates. The plaintiffs have always ill treated their sister. Therefore, their father was very much pained and he did not have good opinion about the plaintiffs. The family members of the daughters were also suffering from illness and they have incurred losses. The plaintiffs 8 were not showing any sympathy towards their sister. The petitioners' wives also have behaved very badly with the respondent. The plaintiffs are the silent spectators. In spite of the same, the respondent has pardoned these plaintiffs. The deceased Shankaranarayana Setty was suffering from diabetes and ailment of kidney and heart. His wife is also suffering from heart disease. The plaintiffs never took care of their parents when their health was not sound. The parents alone were going to the hospital for treatment. In the year 1995, an Angiogram was done to Shankaranarayana Setty and at that time, respondent alone accompanied him to Bangalore and got the treatment. At that stage, Shankaranarayana Setty wanted to make a will. On coming to know about the same, the petitioners started showing affection to their sisters. Thereafter, they requested Shankaranarayana Setty to give a portion of the property which was convenient to them. They assured Shankaranarayana Setty that they would take care of his daughters. The defendant also persuaded her husband to 9 give property to her daughters and therefore, a will came to be executed on 06.05.1995 giving properties to the daughters and sons. In the said will, a condition was put that if anybody acts contrary to the assurances given, then they would not be entitled to any property at all. As Shankaranarayana Setty was suffering from various diseases, he took treatment in Davangere, Shimoga, Bangalore and his daughters stood by him. His sons never showed any interest in treating the parents. On 27.8.2002 when his position became critical, he was admitted to Janatha Nursing Home at Hassan by the defendant. He was suffering from gangrene in a toe. On 04.09.2002 after conducting an operation, his toe was removed. Thereafter, his condition became worse. On 5.9.2002, Shankaranarayana Setty was very weak. He was suffering from fever and severe pain on account of the operation he was also suffering from stomach pain and was also suffering from breathing. He was not in a position to talk. His physical condition became worse from that day. On the 10 advice of the doctors, on 10.09.2002, he was taken to Bangalore for treatment. At that time, only defendant was with him. He was in ICU and her daughters were also helping their mother. However his sons showed no interest. On 07.10.2002, the doctors expressed doubt about recovery of Shankaranarayana Setty. Then the defendant informed all her children. By evening, all of them assembled in the hospital. At that stage, the 1st plaintiff after talking to the doctor told the respondent that, the hospital bill has to be paid. The defendant had sold her ornaments and kept the money in her brothers' place. She got the money and paid the bill. On 08.10.2002 Shankaranarayana Setty died at Bangalore. His body was taken to Channarayapatna for funeral. The defendant got all obsequies ceremonies performed through her son. On 10.03.2003 she obtained a copy of the will, death certificate and partition deed of the year 1989 and then made an application for transfer of khata in her favour on 17.3.2003 and 24.3.2003. When khatha was not made out, she was constrained to lodge a 11 complaint to the Lokayukta. Then it was realized that, a joint khata had been made in the name of the plaintiffs and the defendant. Thereafter the mistake was rectified and khatha was made out in her name. Thereafter, the plaintiffs trespassed into the house of the defendant and insisted that, she should give up her rights in the properties which are given to her under the will. She was threatened. They abused their sister. The defendant was constrained to lodge a complaint with the jurisdictional police on 26.4.2003. The police did not take any action. However, the trouble from the plaintiffs did not stop. She gave a complaint to the Superintendent of Police as well as to the Deputy Commissioner of Police for protection. Again she made a request to the Lokayukta but, still she did not get any protection. On 24.4.2003 and on 28.4.2003, the plaintiffs got legal notice issued asking them not to change the joint khata. Thereafter, the plaintiffs filed a suit i.e., O.S.No.9/2003 on 28.4.2003 before the Vacation Court for a decree of permanent injunction against the defendant. 12 Subsequently, the case is numbered as O.S.No.198/2003 and it is pending. The defendant referred to the documents, medical certificate issued by the hospital authorities showing the condition of the Shankaranarayana Setty when he was hospitalised. She denied all other allegations in the petition. She wanted the petition to be dismissed.
8. As the defendant disputed the will set up by the plaintiffs, the probate was converted into a suit and it was numbered as O.S.No.26/2004. Thereafter, the Court framed the following two issues:
"ISSUES
1. Whether the Plaintiffs prove that late C.S.Shankaranarayana Setty has executed his last Will dated 5.9.2002 while in sound state of mind?
2. To what order the parties are entitled to?"
9. The plaintiffs in order to substantiate their claim, examined the second plaintiff as P.W-1, examined a 13 Doctor by name Dr. A.C. Munivenkatagowda as P.W-2 and attesting witnesses to the Will namely C.S. Sheshachala and C.S. Sathyanarayana Setty as P.Ws-3 and 4. They also produced 36 documents, which are marked as Exs.P-1 to P-36. On behalf of defendant S. Nagalakshmi was examined as D.W-1. She produced in all 20 documents which are marked as Exs.D-1 to D-20.
10. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that their father was in good terms with them and he had love and affection. The recitals in Ex.P-7 shows that the earlier Will dated 06.05.1995 is revoked by his last Will. Exclusion of daughters and wife from the Will does not create any doubt about the genuineness of the Will Ex.P-7 as per the decision reported in AIR 1977 SC 63. Hence the plaintiffs have proved that Shankaranarayana Setty was in sound state of mind while executing the Will Ex.P-7 on 05.09.2002. Thus the plaintiffs 14 have proved execution of the Will Ex.P-7 by their father Sri Shankaranarayana Setty voluntarily while in sound disposing state of mind. Ex.P-7 is the last Will of Shankaranarayana Setty. The execution of the Will Ex.P-7 is not surrounded by suspicious circumstances as alleged by the defendant. The evidence of P.Ws-3 and 4 is unequivocal and trust worthy in proving the Will Ex.P-7. Therefore the Court below held that the plaintiffs are entitled to have probate in respect of Will Ex.P-7 dated 05.09.2002 executed by their father Shankaranarayana Setty with respect to the schedule property. Accordingly the suit was decreed as prayed for.
11. Aggrieved by the said judgment and decree of the trial Court the defendants have preferred this appeal.
12. Sri. S.S. Ramdas, learned Senior Counsel appearing for the appellant-defendants assailing the impugned judgment and decree of the Court below 15 contended that the admitted evidence on record discloses that the testator was admitted to the hospital on 27.08.2002 at Hassan. On 04.09.2002 in the evening the operation was conducted by removing toe on account of gangrene. The alleged Will is said to have been executed on the next day on 05.09.2002 at 6.30 p.m. in the absence of defendants who was always with the testator when he was in the hospital. In the Will, the daughters have been disinherited. Only a sum of Rs.5,000-00 is to be paid to the wife and the entire property has been given to the plaintiffs. The testator was discharged from the hospital on 10.09.2002. As his condition deteriorated, she was advised to take him to Bangalore for treatment. Accordingly he was shifted to Trinity Hospital, Bangalore on 18.09.2002 and on 08.10.2002 he died.
13. It is further submitted that, the undisputed facts clearly disclose that the testator was not in a sound state of mind on the day he is said to have executed the alleged Will. 16 A comparison of signature of the Will with that of the admitted signature in the partition deed clearly shows that the signature of the Will is not that of the testator. Though two witnesses have been examined to prove the due execution and attestation of the Will, when the signature on the Will is totally different from the admitted signature found in the registered document, the evidence of the attesting witnesses loses its significance and it is clear that they are the persons who in collusion with the plaintiffs have fabricated this document. Though the deceased testator has executed the Will on 06.05.1995 and got it duly registered, the disputed Will is not registered. The evidence on record shows that the relationship between the sons and the father was not cordial. In fact, after the demise of the testator, on an application made by his wife, the katha of the property was transferred in her name. The plaintiffs filed a suit against the defendant for a decree of permanent injunction. In the said suit, in categorical terms, the plaintiffs have averred that the testator died intestate. In fact, the evidence 17 of the Doctor P.W-2 clearly demonstrates that the testator was not in sound state of mind. The Will is a typed Will and who has typed the Will remains a mystery. Therefore he submits that the aforesaid circumstances clearly demonstrates that Ex.P-7 is not executed by the testator; on the date of the alleged execution he was not in sound state of mind; the plaintiffs have not properly explained the suspicious circumstances surrounding the Will and the trial Court without proper appreciation of the material on record, without application of mind, erred in holding that the Will is duly proved and in decreeing the suit of the plaintiffs.
14. Per contra, the learned Counsel Sri. Narahari appearing for the plaintiffs-respondent in this appeal submitted that, in order to prove due execution of the Will, two attesting witnesses have been examined, whose evidence has stood the test of cross examination. The relationship between the testator and the sons was cordial. They took care of their father. Therefore it is quite natural that he has 18 bequeathed the entire property in favour of his two sons, making proper provision for his wife. As all the daughters were married and living with their husbands and sufficient money has been spent for their marriages and also as he has provided them sufficiently during his life time, he did not choose to make any provision for them in the schedule property. This is also quite but natural. The trial Judge has taken trouble of comparing the disputed signature on Ex.P-7 with the admitted signature found in the resolution book Ex.P-33 and like a handwriting expert, recorded a finding that the signature tallies. Two attesting witnesses have been examined. The learned Judge has also compared the signatures and recorded a finding of fact. He submits that no case for interference with the said finding of fact is made out in this appeal.
15. It is further assumed that though in the evening of 04.09.2002, the operation was done to remove the toe which was inflicted with gangrene, that is what prompted the 19 testator to take steps for execution of the Will the very next day by summoning his brother and the trusted man. Merely because at the time of execution of the Will he was in the hospital, the defendant was not present, that would not vitiate the Will. The Doctor's evidence in the case clearly shows that, the testator was in sound state of mind and therefore the finding recorded by the trial Court that the Will is duly executed and the testator was in sound state of mind at the time of execution of the Will and all suspicious circumstances surrounding the Will are duly explained, cannot be found fault with.
16. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
(1) Whether the finding of the trial Court that the signature found in Ex.P-7 the disputed Will, is that of the testator, calls for any interference?20
(2) Whether the finding of the trial Court that the Will has been duly executed, the testator was in sound state of mind at the time of execution of the Will and the suspicious circumstances have been properly explained, is correct?
POINT NO.1
17. The plaintiffs have specifically pleaded in para 3 of the plaint that their father died on 08.10.2002 at Trinity Hospital, Bangalore. He has executed the Will on 05.09.2002 at Hassan and was duly executed by him in the presence of the witnesses named in the said Will. The original Will executed by the father of the plaintiffs was with the senior paternal uncle Sri. C.S. Sathyanarayana Setty and the said Will has been handed over to the plaintiffs by their paternal uncle just recently. As per the recitals of the said Will the plaintiffs being the only two sons of Late C.S. Shankaranarayana Setty are entitled to get the schedule properties of Late C.S. Shankaranarayana Setty. By virtue of the said Will, they approached the Town 21 Municipality, Channarayapatna for getting the schedule properties, katha changed to their names jointly. But the said authorities in turn asked the plaintiffs to get the Probate for the Will executed by their father. Hence, left with no option and in order to protect and preserve the schedule properties from being wasted or damaged, the plaintiffs have filed this petition for grant of Probate.
18. From the aforesaid pleadings, it is clear that, the petitioner-plaintiffs have come to the Court seeking Probate of the Will by their father contending that they being the only two sons of their father are entitled to get the schedule properties. In the said petition, they have not made their mother and sisters as parties. In the body of the petition, they have not mentioned about the four daughters of their father. They have not even mentioned about the existence of their mother. The cause of action for the Probate petition is, when they approached the authorities for transfer of katha, they called upon them to obtain the Probate. They do not 22 mention that, their mother approached the authorities for katha after the death of their father on the basis of the earlier Will executed by the deceased on 06.05.1995. Katha had been transferred to the name of their mother. When they filed an application for katha transfer based on the disputed Will, objection was raised. All these facts are suppressed from the Court at the inception. However, when citation was ordered and the hearing date of the Probate petition was duly notified in the newspapers, their mother, who was in possession of these properties, filed an application to implead herself in the proceedings and that his how she was made party to the proceedings. After impleading herself, she filed a detailed statement of objections contesting the claim. She has categorically stated that that alleged Will propounded by the plaintiffs is a fabricated document. The said document is created in collusion with the persons who have attested the said document. This document has come into existence subsequent to April 2003. The said Will do not bear the 23 signature of the deceased C.S. Shankarnarayana Setty. The plaintiffs were not in good terms with their father. The attesting witnesses are in close contact with the plaintiffs. In fact, clandestinely without the knowledge of the respondent-defendant, joint katha was made in the name of the plaintiffs. Thereafter on the complaint given by her, the proceedings were initiated and the mistake was rectified. It is thereafter they have approached the Court suppressing all these facts. She has also specifically stated that as on 05.09.2002, C.S. Shankaranarayana Setty was in a very weak condition. After the operation, when his toe was removed, he was suffering from pain and fever. He was unable to talk. He was unable to think. His condition worsened day by day. On 10.09.2002 as per the Doctor's advise, he was discharged from Janatha Nursing Home. When he was in the hospital and in ICU, it is the defendant who was looking after him day in and day out. Her daughters were assisting her. Plaintiffs being the sons never bothered about their father. When Doctors doubted about 24 the recovery of C.S Shankarnarayana Setty and advised her to take him to Bangalore and even when she took him to Bangalore she was all alone and the sons never came. It is only when the Doctors gave up hopes, she informed her sons and daughters, who came to hospital and on 08.10.2002 he passed away in the hospital at Bangalore.
19. In the light of these pleadings, the Will propounded by the petitioners was specifically denied. She specifically denied that the signature found on the Will, Ex.P-7 is that of her husband. Therefore it is necessary to first find out whether the disputed Will bears the signature of the testator.
20. Though two attesting witnesses were examined in proof of the Will, the trial Court took the trouble of comparing the disputed signature with the admitted signature in terms of Section 73 of the Indian Evidence Act. In this regard, the learned Judge observed in his judgment 25 that by using magnifying glass he compared the admitted signatures on Ex.P.33(a) to (s) with disputed signatures Ex.P-7(a) to (d). He has given a graphic description of what he observed. It reads as under:
"It is seen from the magnifying glass that and also on examination of admitted signatures Ex.P30 (a) to (s) and disputed signatures Ex.P7 (a) to (d) are similar in writing skill, style and quality of strokes formation and letters in both the documents. While writing initials 'C.S.' the writer put full stop in both the admitted and disputed signatures. While writing Shankaranarayana Setty, the manner of writing of 'S' in the starting it is twisted moment in the form of figures 'S'.
While writing the following letter 'h' in continuation of 'S' the writer write in the form of 'L" above the starting letter 'S'. The habit of writing following letter 'a' in continuation of the letter 'h' in the form of oval formation. In the habit of writing the letter 'k' the writer write in the form of 'f'. The manner of writing of the word 'Setty' with their moment, shape, style and formation are found similar between the admitted and 26 disputed signatures. The letter after 'Sanka' the disputed signatures Ex.P7 (a) to (d) are showing simplified form of movement and formation when compared with the admitted signatures Ex.P33(a) to (s) and they are showing similarities in formation of letters 'n' is in twisted movement 'y' is in the form of 'q' and 'r' in small twisted movement and 'a' as in the form of 'o' before starting to write 'Setty'. On careful comparison of the admitted signatures Ex.P33 (a) to (s) with disputed signatures Ex.P7 (a) to (d), both the admitted and disputed signatures Ex.P7 (a) to (d), both the admitted and disputed signatures are similar to words, style, movement, writing skill and quality to strokes formation and it made clear that ex.P7 (a) to (d) are the signatures of the testator C.S. Shankaranarayana Setty. On perusal of the signatures Ex.P7(a) to (d) the said signatures signed using one pen only."
21. The aforesaid passage in the Judgment clearly discloses that, the observation referred to supra are that of a handwriting expert and not of a Judge. While making a comparison what the judge has to see is, whether the 27 signatures are similar to his eyes. He is not a handwriting expert. He has no knowledge of science of handwriting. Therefore in this case, the Judge has not compared the signature. What he has set out above is the evidence of an expert and not a Judge. If really the learned Judge has compared the signature as set out above, he would not have failed to see that the signature found in Ex.P-33(a) to (s), the resolution book, the signature of the testator is as "C.S. Shankaranarayana Setty". In the Will, the word "Narayana" itself is missing. It is signed as "C.S. Shankara Setty. Further, the oral evidence of the attesting witnesses is recorded by the Court below. Both the attesting witnesses, in categorical terms have admitted that, in the disputed signature, the word `Narayana' is missing. But still they contend that it is the signature of the deceased testator. Therefore, we wonder whether the observation made by the above Judge was made after comparison or not. 28
22. When the testator was signing as C.S. Shankaranarayana Setty and in the disputed Will, he writes it as C.S. Shankara Setty, nothing more needs to be looked into. No explanation is forthcoming from the plaintiffs or other witnesses. It is nobody's case that, at the time of execution of the Will, he was feeble and his hands were shaking, there was loss of memory and his signature on the Will is not as clearly as in Ex.P-33(a) to (s), which was written when he was in sound state of mind. Unfortunately, the trial Court has not applied its mind in looking into these two signatures and committed serious error in recording a finding that the signature found on the Will Ex.P-7 tallies with the signature found on Ex.P-33(a) to (s). The said finding is ex facie illegal and thus it requires to be set aside and accordingly it is set aside.
23. Once it is held that the signature found on the disputed Will is not that of the testator, the matter should end there. No further investigation is required. However, as 29 the trial Court has recorded a finding on other issues, it is necessary to go into other aspect of the Will also. POINT NO.2
24. The argument of the plaintiffs is that the two witnesses who have attested the documents have been examined and their evidence clearly proves due execution of the Will. In order to appreciate this contention, let us see who these two witnesses are. One of the attesting witnesses to the Will is C.S. Sheshachala. On the day he was examined, he was aged about 66 years. Incidentally the Will has three attesting witnesses. The other two being, Jagadish and Sathyanarayana Setty. He has deposed that, C.S. Shankaranarayana Setty executed the Will in his presence. He was in sound state of mind at the time of execution of the Will. He also refers to family settlement dated 01.05.1989 amongst the plaintiffs' and their father Sri. C.S. Shankaranarayana Setty. He also refers to an earlier Will executed by Shankaranarayana Setty and after revoking the same, the impugned Will is executed. In the cross 30 examination, he refers to the relationship between his family and the family of the testator. He admits that, he is not the attesting witness to the Will dated 06.05.1995. He admits that, he has seen Shankaranarayana Setty 15 days prior to his admission to Janatha Nursing Home at Hassan. It was a casual meeting. Shankaranarayana Setty was suffering from diabetes and in the right toe he had gangrene. On 05.09.2002 at about 7.30 a.m. Shankaranarayana Setty telephoned to him and asked him to come to the hospital but he did not explain the purpose. However, he went to the hospital at about 7 p.m. He does not remember in which ward he was admitted. When he went there, he saw Sathyanarayana Setty, the other attesting witness also present in the hospital. They were talking. Sometime later, another attesting witness-Jagadish also came there. At that stage, Shankaranarayana Setty informed that he has made a new Will and he has to sign as witness. All the three were present. Then Shankaranarayana Setty handed over the handwritten draft Will to him for reading.
31Shankaranarayana Setty was in possession of the typed Will. He returned the hand written Will to Shankaranarayana Setty. He does not know what happened to the hand written Will. He has not mentioned in the affidavit that there was a draft hand written Will. After all the witnesses signed the typed Will, Shankaranarayana Setty kept the Will with him. When Shankaranarayana Setty was in hospital, his wife looked after him. On 04.09.2002 the operation was conducted to Shankaranarayana Setty. They removed the toe has suffered gangrene. When operation was conducted, anesthesia was given. He does not know how much time it would take for such person to come out to become normal. He does not know who typed Ex.P-7. He does not know in Ex.P-7, there is name of the person who typed the Will. Ex.P-7 runs to 5-6 pages. Out of them, one is stamp paper and others are ordinary papers. When he was shown Ex.P-7, he admits that pages 3 and 4 are not an ordinary papers. Even in size, they are not an ordinary papers. Shankaranarayana Setty was not signing clearly. He 32 identified the signature of Shankaranarayana Setty in Ex.D5(a), 4(a) and Ex.D-3(a). He admits that signature found in Ex.P-7(a) to (d) are not similar to Ex.D-3(a), 4(a) and 5(a). In Ex.P-7(a) to (d) the signature of Shankaranarayana Setty is not clear. Jagadish is none other than Shankaranarayana Setty's uncle's son.
25. He has also stated that he is resident of Channarayapatna. The entire property belonging to C.S.Shankaranarayana Setty was given to his two sons and Rs.5,000/- to their mother. He further stated that the amount in Bank was bequeathed to his wife and she was given a life interest in the house where she was residing. He admits that the Will was not written in the handwriting of C.S. Shankaranarayana Setty. He has stated that, he did not inform about the execution of the Will to the plaintiffs. After signing the Will, he left the place at about 8 p.m. Nagalakshmi the wife of C.S.Shankaranarayana Setty was not present at the time of execution of the Will. 33
26. The other attesting witness is none other than the elder brother of C.S.Shankaranarayana Setty. He has also deposed that, C.S.Shankaranarayana Setty affixed his signature to the Will on 5.9.2002 in his presence and the Will dated 6.5.1995 which was revoked. The testator bequeathed the properties in favour of plaintiffs herein and also in favour of his wife. The testator was in sound state of mind at the time of execution of the Will and he also referred to the earlier settlement dated 1.5.1989. After the execution of the Will and attestation, the Will was given to his custody. He has given the original to the plaintiffs prior to the suit.
27. Further he stated that signatures found at Ex.P7(a) to (d) are affixed by C.S.Shankaranarayana Setty in his presence. He signed after Jagadeesh and Seshachala affixed their signature, which is a typewritten Will. He has stated that, he does not know, after execution of the Will when his brother died and he does not remember the name of the Hospital. He also had gone to Bangalore to see his 34 brother. He does not remember when his brother died after his visit to the Hospital. Prior to going to Bangalore, he was at Hassan. He does not remember whether he was admitted to the Hospital. The testator was operated because of pain in toes. When he was in Hospital, he visited once in two days. His wife and children were looking after him when he was in Hassan. The testator told him that, his wife has got a Will made in her favour which is not correct. The properties have to go to his sons. Therefore, he asked him to get a stamp paper. He gave the stamp paper to his brother. He got the stamp paper to cancel the earlier Will made during 1995. His brother wrote a Will 4-5 days after he gave the stamp paper. It was handwritten by him. By that time, he had been operated. He alone typed the Will which was in his handwriting. Again he said he got it typed. Where he got it typed, he does not remember. He has signed the Will which is typed. He has not typed the Will. He admitted the signatures of C.S.Shankaranarayana Setty in Ex.D3(a). He also admitted the signature found in Ex.D-5(a). He also 35 deposed that the signature found in Ex.P-7(a) is his brother's. He admits the Will at Ex.P7 and also admits the signature of C.S.Shankaranarayana Setty. In the signature at Ex.P-7(a), it is mentioned as C.S.Shankaranarayana Setty. It is not written as C.S.Setty. All his signatures are of his brother's. There are no other signatures of the testator as written in the style at Ex.D-7(a) and the Will was made on 5.9.2002. On 5.9.2002, he went to the Hospital at about 5 or 6 p.m.. He alone went there. His brother C.S.Shankaranarayana Setty signed the Will and thereafter his signature was taken. Thereafter, Jagadeesh affixed his signature and lastly Seshachala affixed his signature. The Will, after execution, was handed over to him with a request to handover the same to his sons after his death. He admits Ex.P7 was executed one or two days earlier to the operation had taken place. At the time of execution of the Will, Doctor or nobody else were present. On the date the Will is made, his brother was aged about 73-74 years. In Ex.P7, no property is given to his daughters. The reason is, he has 36 given to them many properties during his lifetime. However, no reasons are mentioned in the Will for disinheriting the daughters. He admits that prior to 35 years prior to his death he was suffering from diabetes. He does not know whether his brother had blood pressure. He does not know, for what reason his brother was operated. He does not know who sold the stamp paper to him on which Ex.P7 was written. He was not present at the time of purchase of the stamp paper. The stamp paper was purchased in the name of C.S.Shankaranarayana Setty. He has not written the Will in the hospital. It is C.S.Shankaranarayana Setty who wrote it prior to typing the Will. C.S.Shankaranarayana Setty had written it in a paper in his own hand writing. He had read handwritten Will. He had got the Will typed also on a stamp paper. On 5.9.2002, C.S.Shankaranarayana Setty phoned to him in the morning and asked him to come to the hospital.
28. PW.2-Dr.Munivenkate Gowda is the Doctor who has been examined by the plaintiffs' to show that, the 37 testator was in a sound state of mind at the time of execution of the Will. He has deposed that he got admitted C.S.Shankaranarayana Setty on 27.8.2002 to the Hospital. He was treating him for gangrene, diabetes and heart trouble. His gangrene became worse. After consulting Dr.Eshwaraprasad, Surgeon, they decided to remove the portion of the toe where gangrene had set in, otherwise his life was in danger. The said fact was discussed with C.S.Shankaranarayana Setty and his wife Nagalakshmi for which they agreed. Therefore, on 04.09.2002, the gangrene toe was removed. But, the treatment continued for heart problem as well as diabetes. He was also getting fever. He was also having kidney problem. If no immediate steps were taken to treat the heart ailment, by mere medicine, it cannot be controlled and therefore, he advised them to take treatment. Thereafter, he was taken to Bangalore for treatment.
38
29. Throughout the period of treatment to C.S.Shankaranarayana Setty, his wife was in the hospital. As he was admitted to special ward in the same room, she was also provided a place. It is she who admitted him to the hospital and it she who took care of him when he was in the Hospital. It is she who was taking care of paying bills etc., and he further stated she was making the payment at the counter. Even after operation, his health was not stable. Only when the treatment was given for some time, he used to be stable. From 4.9.2002 onwards, the dressing was done to the wound, but, his general condition was serious. Between 4.9.2002 to 10.9.2002, the patient was getting fever suddenly. He was feeling it difficult even to sit or to go to bathroom. When I asked her to get assistance from somebody, she said nobody has come though she had telephoned. Then, he suggested her to engage a nurse or an Ayaha. He only introduced one nurse and one Ayaha to them. He was getting up from the bed only for the purpose of going to bathroom and all other time he was sleeping. 39
30. He has been extensively cross-examined with reference to Ex.P14 the certificate where he has given graphic description of the condition of the patient. This would clearly go to show that, the testator was not in a sound state of mind either on the date of operation or next date of the operation. In fact, he was not able to respirate and had swelling in the legs, that was the reason he asked them to shift the patient to Bangalore.
31. From this evidence on record, it is clear that, the testator had executed a registered Will bequeathing his properties in favour of his wife. He was living with his wife as his sons were separately living and daughters were living in their husbands' house. He was suffering from Blood pressure, kidney problem, heart problem. The sons never took care of him. It is his wife who was with him all through. His condition became critical on 27.8.2002. He was admitted to the hospital. On 4.9.2002 in the evening, the operation was conducted on toe which was inflicted with gangrene and 40 the same was removed. The doctor's evidence shows that, even after operation, his health was not stable. His health was not stable on 10.9.2002 because his health was deteriorating, he advised them to take the patient to Bangalore. It is in this context, we have to ascertain, in the normal circumstances, where a person who underwent operation in the evening and was not in a position to sit and walk and who was suffering from fever and pain, could have phoned to the attesting witnesses on the morning of 5.9.2002 requesting them to come to the Hospital in the evening.
32. The Will which is said to have been executed by him runs to 4 typed pages. The evidence on record discloses that the testator had written a Will in his own handwriting. There is no evidence on record to show as to when was this Will written, was it before the operation, is it after the operation or on the next date?. If the tenor of witnesses particularly his brother C.S.Sathyanarayana Setty is to be 41 believed, it is only after the operation, he made up his mind to revoke the earlier will made and executed the last Will giving properties to his sons. When the operation was conducted in the evening of 4.9.2002 and when he was administered anaesthasia and when it takes considerable time to get back to normal for a patient, the execution of the Will on 4.9.2002 is doubtful, in the absence of any evidence on record. It is not forthcoming, when was the handwritten Will prepared and who prepared the same. It is stated that the Will was prepared by the testator himself. On 4th evening and on 5th morning at about 7 a.m. when he called the witnesses they do not know about the Will. They came to the Hospital between 5 to 6 p.m. By then the handwritten Will was typewritten. Only after reading the Will, the testator have affixed the signature because he is the person who has typed the Will. It is not known who is the person who has drafted the Will. It is nobody's case, whether the person who drafted the Will was conversant with the drafting of the Will. In fact, even when we go through the Will meticulously, the 42 facts have been set out i.e. the settlement deed executed on 1.5.1989, the suit filed in OS 427/89, the execution of the registered Will on 6.5.1995, particulars about the LIC bond, deposits in Canara Bank, Channarayapatna, Kannika Co- operative Bank, BSK Post office and other financial institutions. Therefore, the will is prepared by a professional writer, keeping all the relevant documents before him. It is no body's case that, the testator had the necessary expertise to draft a will. It is also no body's case that, the testator had all the relevant documents in the Hospital so as to refer to them when the will is drafted. No body took those documents to him for the purpose of drafting. In fact, the recital in the Will shows, the Will was written in the presence of his brother C.S.Sathyanarayana Setty and his friends and well- wishers, C.S. Seshachala, C.R.Jagadeesh in Hassan in Janatha Nursing Home according to his wish. Thereafter, it was typed and before them it is signed and they also signed in his presence. This recital in the Will is not spoken to by the witnesses. If the Will was written in the Hospital in the 43 presence of attesting witnesses and thereafter was signed to make it a document, both the witnesses plead complete ignorance about preparation of the Will and typing of the Will. The two attesting witnesses have been examined in this case. They have not stated that the Will was drafted in the hospital in their presence nor have they stated that the testator got it typed. On the contrary, their specific case is, by the time they went to the Hospital, both typed and handwritten Wills were in existence. Handwritten Will was given to Seshachala, the typewritten Will was in the hands of the Testator. Thereafter, he read the entire Will and then the testator affixed his signature to the typed Will is his evidence. The elder brother of C.S.Shankaranarayana Setty has stated that, he purchased the stamp paper in the name of his brother. He deposes ignorance about the name of the stamp vendor from whom it was purchased. The stamp paper was purchased on 30th of August 2002. The Will is executed on 5.9.2002. If the testator called his elder brother by phone on 5.9.2002 at about 7 a.m. and asked them to 44 come in the evening, if that is so, the attesting witnesses were not aware of execution of the Will. Purchase of stamp paper by his elder brother on 30.8.2002, shows that, the will is not executed as he has deposed. Therefore, the evidence given by these two attesting witnesses runs counter to the contents of the Will. It is clear that, the testator did not write the Will in his handwriting. He did not get it written in the presence of the aforesaid persons. Thereafter he did not got it typed. He has not affixed his signature in the presence of the witnesses and also took their signatures in his presence. The original Will was not handed over to C.S. Sathyanarayana Setty. Therefore, their evidence cannot be believed and their evidence do not prove the writing of the Will, typing of the Will and execution of the Will by the testator.
33. This conduct has to be seen in the context of the suit filed by the plaintiffs in this case as per Ex.D7. The plaintiffs herein filed a suit against their mother in OS 198/03 for decree of permanent injunction restraining her 45 from alienating or disposing of the suit properties. In para.4 of the plaint, they have categorically stated as under:
"The father of plaintiffs Sri
C.S.Shankarayanarayana Setty died on
8.10.2002 at Bangalore and he died intestate, leaving behind the plaintiffs as his only two sons and the defendant herein as his wife/widow. The plaintiffs have got four sisters and they are all married and living with their husbands' houses happily."
34. After the death of father of plaintiffs, the plaint schedule properties of their late father Sri C.S.Shankaranarayana Setty came to be changed in the joint names of plaintiffs and defendant and the defendant herein got the khatha made in her name along with the plaintiffs. Therefore, in categorical terms, they have pleaded that, their father died intestate. They filed a suit against their own mother alleging that she is attempting to alienate the properties. That was the relationship which existed between the plaintiffs and their mother. Therefore, this evidence on 46 record clearly demonstrates that, the signature found on Ex.P7 is not that of C.S.Shankaranarayana Setty and when the plaintiffs came to the Court saying that, their father died intestate, the khatha of the property stood in the joint name of plaintiffs and defendant, they were fully aware that, their father during his lifetime had made a registered Will bequeathing his properties in favour of his wife. They were sure that they would not get any right in these properties. It is in this context, the evidence of the defendant assumes importance. That apart, it is an admitted fact that the relationship between the father and sons was not cordial. During the lifetime of their father, the second plaintiff, filed a suit O.S. No.427 of 1987 against the first plaintiff and his father for a decree of permanent injunction restraining them from interfering with their peaceful enjoyment of the property. The said suits were filed on 10.8.1989. On 20.10.1989, a compromise petition was filed under Order 23 Rule 3 of CPC. In terms of the compromise petition, the schedule properties were partitioned and the status of joint 47 family came to an end. Those properties which fell to the share of the father which is the subject of these proceedings was the separate property of the father. Therefore, in the year 1995, as he did not want to give his properties to his sons, he bequeathed the entire property in the name of his wife by way of registered will. Therefore, intention of the testator was clear, at an undisputed point of time. If really the intention was to cancel the earlier registered Will and make a last Will he would have got the said Will also registered. If he wanted to make a Will, he would not have waited till the date the operation has to be conducted. He was suffering from kidney problem and heart ailment for some time. He was also suffering from diabetes for nearly 35 years. From this it is clear that, if the intention was to make a new Will by cancelling the registered Will before being admitted to the Hospital, he would have made a Will and got it registered. The evidence on record shows that, his wife was provided a space by the side of the husband through out her husband stay in the Hospital. She was not present at the 48 time of execution of the will as deposed to by the attesting witnesses. It gives rise to suspicion. The Doctor has deposed through out her stay in Hospital, the condition of the testator was not stable. He also has deposed that, the testator condition was not stable before operation, so also was not stable even after operation and at the time of discharge from the hospital. It was deteriorating. They advised defendant to admit him to Hospital at Bangalore. Therefore, the testator executing a Will in the Hospital in his Ward on 5.9.2002 is highly improbable.
35. The Will also contains the fact that, one of the daughter Vasudha and her husband Muralidhar are in difficult circumstances. He has given lots of gold and silver articles to them and therefore he is not giving right or share to any of the daughters in the schedule properties. This fact is not proved by the plaintiffs. On the contrary, the evidence on record shows that, one of the daughters continues to be in difficult circumstances. It is to be remembered that earlier he made a Will in favour of his wife and got it 49 registered. Absolutely there is no reason or circumstances subsequent thereto which justifies its cancellation. In the Will, no reasons are assigned for cancelling the earlier Will. An attempt is made in the course of the evidence that, especially relying on the evidence of the defendant that, the earlier Will was prepared at her instance and therefore the Court below goes to the extent of saying that, the said Will is not properly executed, even though it was nobody's case. In this proceedings, the defendant was not called upon to prove the due execution of the Will dated 06.05.1995. The very Will on which the plaintiffs rely on categorically states that, the testator had made the Will on 06.05.1995 bequeathing all his properties to his wife and got it duly registered. Nothing more was required to hold that, there was a Will in favour of the defendant. However, when the joint katha was made, the defendant was making representation to exclude the names of her sons and make the katha exclusively in her name. It is her specific case that, her sons are powerful persons and they in collusion with the officials of the 50 Municipal Corporation have got this joint katha made out. When her request was not acceded to, she filed complaints before the Lokayukta. In fact, on the day the plaintiffs filed the suit against their mother, they have specifically pleaded that, their father died intestate. Therefore the schedule properties should belong to them also along with their mother and that is how the joint katha was made out. It is only thereafter in order to get over the effect of the said registered Will, this impugned Will is got prepared and claim is made on the basis of the said Will claiming the schedule properties exclusively. When the husband had given the entire property to the wife, when no reasons are given for cancelling the said Will, there is no reason forthcoming as to why the wife was disinherited from the property. The contents of the Will shows that, the wife is a literary person. She is a musician and he had expressed his desire that the children should encourage her and give all assistance to her for pursuing both literary work as well as musical 51 performances. That only shows that, husband had no reason to disinherit his wife.
36. When once the Will is executed under those circumstances and his daughters are disinherited the property, the wife was given only Rs.5,000/- per month towards her maintenance, it is surrounded by suspicious circumstances. It is for the propounder of the Will to remove the suspicious circumstances to the satisfaction of the Court. In the Will, there is no explanation for not giving any property to his daughters. The evidence on record shows, they are married and are living with their husbands who are wealthy but, the evidence on record is contrary to the same. In fact, one of the daughter is living in penury. As the plaintiffs were also given their legitimate share in the joint family property under a compromise decree, then there was no obligation cast upon the testator to give properties to his sons. There is nothing on record to show that, the properties in all, comprise how much money or any jewellery was given to them is not forthcoming. The sons have not taken care of 52 him or his wife. On the contrary, they have been fighting for the properties. The evidence on record shows, it is the wife who has admitted her husband to the hospital, she was near her husband all through. At no point of time, sons visited the hospital. It is highly improbable that, testator by cancelling the registered Will would have bequeathed the entire properties to his sons by disinheriting his four daughters and giving only Rs.5000/- to his wife. It is not in dispute that, late C.S. Shankaranarayana Setty was admitted to the Hospital as he was suffering from gangrene in his toe and the toe was removed. On the very next day, the Will is executed. It is again highly improbable circumstance. After execution of the Will, he dies within 32 days. This is yet another circumstance to say that he was not in a sound state of mind. The Doctor's conclusive evidence proves this fact. Unfortunately, the trial Court has not properly appreciated these facts which emerge from the evidence on record. As already set out, the trial Court has not looked into the disputed signatures visa-a-vis the 53 admitted signature. In the admitted signature, the testator has signed as C.S.Shankarayanarayana Setty whereas, in the disputed signature, the very word `Narayana' is missing which the trial Court has not noticed. Therefore, we really doubt the observations made by the learned Judge of the trial Court as a handwriting expert, his own observation which is a matter of great concern to be looked into.
37. In so far as attesting witnesses are concerned, the evidence on record shows, the plaintiffs and their uncle were in hand in glove. All of them joined together and created a document in order to defeat just rights of the widow of Sri C.S. Shankaranarayana Setty. More importantly, after the death of Sri C.S. Shankaranarayana Setty, the plaintiffs filed suit against their own mother. In the said suit, in categorical terms, they have stated Sri C.S. Shankaranarayana Setty died intestate. Therefore, the finding recorded by the Court below is contrary to the evidence on record. It is carried away by the various Judgment relied upon and without looking into the 54 applicability of cases blindly applied those principles to the facts of this case which in fact had no application. Therefore, the finding of the Court below that, the testator was in sound state of mind is contrary to the legal evidence on record. Thus it is clear that, the Will is made under suspicious circumstance and the execution of the Will is also contrary to the evidence on record.
38. The material on record, clearly establishes that the impugned Will Ex.P-7 do not bear the signature of the deceased C.S. Shankaranarayana Setty. Even otherwise, the Will is surrounded by suspicious circumstances and the propounder of the Will has not removed those suspicious circumstances. The evidence adduced by the so called attesting witnesses runs counter to the contents of the Will itself. The testator was not in sound state of mind to execute the Will. Therefore, the finding of the trial Court that the Will is duly executed is unsustainable and accordingly it is hereby set aside. Hence, we pass the following order: 55
a) Appeal is allowed.
b) Judgment and Decree of the trial Court is hereby set aside.
c) The plaintiffs' suit for grant of probate is hereby dismissed.
d) The appeal is allowed with costs throughout.
Sd/-
JUDGE Sd/-
JUDGE nsu/ksp/sk/-