Karnataka High Court
Sri S Krishna Rao vs M J Vittal on 6 March, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 6TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.488/2008(PAR)
C/W
R.F.A.NO.489/2008(PAR)
IN R.F.A.NO.488/2008
BETWEEN
SRI S KRISHNA RAO
SINCE DEAD BY LRS
1(a) SMT.K.BHAGIRATHI
AGED ABOUT 76 YEARS
W/O LATE KRISHNA RAO
1(b) SMT.BHANUMATI K RAO
AGED ABOUT 55 YEARS
D/O LATE KRISHNA RAO
BOTH ARE RESIDING AT
NO.341, 4TH MAIN, SADASHIVANAGAR
BANGALORE-560 080.
...APPELLANTS
[BY SRI ANANT MANDAGI, SR. COUNSEL
FOR SRI VIKRAM UNNI RAJAGOPAL, ADVOCATE FOR A1(a
AND b)]
2
AND
1. M J VITTAL
AGED ABOUT 81 YEARS
S/O LATE M J JIVAN RAO
R/A NO 90, 9TH CROSS
RAJMAHAL VILAS EXTENSION
BANGALORE-560080
2. SRI K JAGANNATH RAO
AGED ABOUT 47 YEARS
S/O SRI S KRISHNA RAO
3. SRI K RAGHUNATH RAO
AGED ABOUT 41 YEARS
S/O SRI S KRISHNA RAO
R/A NO 5 (OLD NO.341)
UPPER PALACE ORCHARDS
SADASHIVANAGAR
BANGALORE-80
4. MRS SUNANDA NARAYANA RAO
AGED ABOUT 80 YEARS
W/O LATE S NARAYANA RAO
R/A NO 3-A/274 ORIENTAL PARADI WHARENU
APARTMENTS WELLINGTON
5. MRS SUDHA BAILEY
AGED ABOUT 57 YEARS
D/O LATE S NARAYANA RAO
NO.17, ROSCOE TERRACE
WADESTWON, WELLINGTON
NEW ZEALAND-6001
6. DR SUDHINDRA NARAYANA GRACE RAO
AGED ABOUT 56 YEARS
S/O LATE S NARAYANA RAO
NO.68, ENDSLIEGH ROAD
R.D.2, HASTINGS NEW ZEALAND
3
7. MR RAVI N RAO
AGED ABOUT 54 YEARS
S/O LATE S NARAYANA RAO
NO.108, WEST 41ST STREET
AUSTIN, TEXAS
78751-4610 USA
8. MR PRITHVI N RAO
AGED ABOUT 51 YEARS
S/O LATE S NARAYANA RAO
R/A NO.1130, BRIDGE WAY LANE
ALLEN, TEXAS 75013 USA
9. K R KRISHNA MURTHY RAO
AGED ABOUT 82 YEARS
H/O LATE LAKSHMI KRISHNAMURTHY
10 . SMT JANHAVI
AGED ABOUT 61 YEARS
D/O LATE LAKSHMI KRISHNAMURTHY
11 . SRIKHER
AGED ABOUT 57 YEARS
S/O LATE LAKSHMI KRISHNAMURTHY
12 . SMT GEETHA BAI
AGED ABOUT 49 YEARS
D/O LATE LAKSHMI KRISHNAMURTHY
9 TO 12 ARE R/AT
NO.8, WEST IYYAN STREET
KUMBAKONAM, TAMIL NADU
13 . SMT JAMUNA SRINIVAS
AGED ABOUT 53 YEARS
D/O LATE RADHA VITTAL
R/A NO.13, MALLORY COURT
GAITHER BURG MD 20879, USA
4
14 . BADRI VITTAL
AGED ABOUT 48 YEARS
S/O LATE RADHA VITTAL
R/A NO.110, RCC (GREF)
C/O 56 APO INDIA
...RESPONDENTS
(BY SRI SREEVATSA, SR. COUNSEL FOR
SRI FRUED RICHARDSON, ADV. FOR R1, R4 TO R8, R10
TO R14; SRI M.RAGHUNATHACHAR, ADV. FOR R2 AND R3;
R9 DECEASED, R10 TO R12 ARE LRS OF DECEASED R9)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 03.1.2008 PASSED IN
O.S.NO.3578/87 ON THE FILE OF THE I ADDL. CITY CIVIL
AND SESS. JUDGE, BANGALORE, PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
******
IN R.F.A.NO.489/2008
BETWEEN
1. SRI K JAGANNATH RAO
S/O.SRI.S.KRISHNA RAO,
AGED ABOUT 47 YEARS,
2. SRI K RAGHUNATH RAO
S/O SRI S.KRISHNA RAO,
AGED ABOUT 41 YEARS,
BOTH ARE AT NO.5(OLD NO.341)
UPPER PALACE ORCHARDS,
SADASHIVANAGAR,
BANGALORE-560 080.
...APPELLANTS
(BY SRI ANANT MANDAGI, SR. COUNSEL
FOR SRI AMIT MANDAGI, ADVOCATE)
5
AND
1. M J VITTAL
S/O LATE M.J.JIVAN RAO,
AGED ABOUT 81 YEARS,
R/O.NO.90, 9TH CROSS,
RAJMAHAL VILAS EXTENSION,
BANGALORE-560 080.
2. SRI S KRISHNA RAO
S/O LATE S.S.MURTHY RAO,
AGED ABOUT 76 YEARS,
R/O.NO.5,(OLD NO.341)
UPPER PALACE ORDHARDS,
SADASHIVANAGAR,
BANGALORE-560 080.
3. MRS.SUNANDA NARAYANA RAO
W/O LATE.S.NARAYANA RAO,
AGED ABOUT 80 YEARS,
R/AT NO.3-A/274, ORIENTAL PARADI,
WHARENU APARTMENTS, WELLINGTON,
NEW ZEALAND - 6001
4. MRS SUDHA BAILEY
AGED ABOUT 57 YEARS
D/O LATE.S.NARAYANA RAO,
NO.17, ROSCOE TERRACE,
WADESTWON, WELLINGTON,
NEW ZEALAND-6001.
5. DR SUDHINDRA NARAYANA RAO
S/O LATE S.NARAYANA RAO,
AGED ABOUT 56 YEARS,
NO.68, ENDSLIEGH ROAD, R.D.2,
HASTINGS, NEW ZEALAND-6001.
6. MR RAVI N RAO
S/O LATE.S.NARAYANA RAO,
6
AGED ABOUT 54 YEARS,
NO.108, WEST 41ST STREET,
AUSTIN TEXAS, 78751-4610,USA
7. MR PRITHVI N RAO
AGED ABOUT 51 YEARS,
S/O.LATE.S.NARAYANA RAO,
R/A.NO.1130,BRIDGE WAY LANE,
ALLEN,TEXAS,75013,USA
8. K R KRISHNA MURTHY RAO
H/O LATE LAKSHMI KRISHNAMURTHY,
AGED ABOUT 82 YEARS,
9. SMT JANHAVI
D/O LATE LAKSHMI KRISHNAMURTHY,
AGED ABOUT 61 YEARS,
10 . SRIKHER
S/O.LATE LAKSHMI KRISHNAMURTHY,
AGED ABOUT 57 YEARS,
11 . SMT GEETHA BAI
AGED ABOUT 49 YEARS,
D/O LATE LAKSHMI KRISHNAMURTHY,
ALL ARE R/O.NO.8,
WEST IYYAN STREET, KUMBAKONAM,
TAMIL NADU-612001
12 . SMT JAMUNA SRINIVAS
AGED ABOUT 53 YEARS,
D/O LATE RADHA VITTAL
R/AT.NO.13, MALLORY COURT,
GAITHER BURG,
MD 20879,USA.
13 . BADRI VITTAL
AGED ABOUT 48 YEARS,
S/O LATE RADHA VITTAL
7
R/AT.NO.110, RCC(GREF)
C/O.56 APO. USA
...RESPONDENTS
(BY SRI SREEVATSA, SR. COUNSEL FOR
SRI FREUD RICHARDSON, ADVOCATE FOR R3 TO R7, R9
TO R12; R1 IS SERVED; SRI K.S.RAMESH, ADVOCATE FOR
R2; SRI AKSHAY SREEVATSA, ADVOCATE FOR R13;
R8 DECEASED -R9 TO R11 ARE LRS OF DECEASED R8)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.3.1.2008 PASSED IN
O.S.NO.3578/1987 ON THE FILE OF THE I ADDL. CITY
CIVIL AND SESS. JUDGE, BANGALORE (CCH-2), PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION IN SO FAR AS IT RELATES TO 'A' SCHEDULE
PROPERTY.
*******
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.09.2022, COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. These two appeals are directed against the same judgment and decree passed in O.S.No.3578/1987 dated 3.01.2008 on the file of I Additional City Civil and Sessions Judge, Bangalore City, filed by first defendant against plaintiff in RFA No.488/2008 and defendant Nos.2 and 3 in RFA No.489.2008 respectively. 8
2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original rankings in the Trial Court.
PLEADINGS
3. The facts narrated in the pleadings before the Trial Court which are utmost necessary for disposal of these appeals are as under:
A suit came to be filed by the plaintiff seeking the relief of partition and separate possession of his 1/4th share in the properties left behind by his father Sri S.S. Murthy Rao and his mother Smt. Rangamma, which is described in 'A', 'B' and 'C' schedule properties to the plaint. Schedule 'A' is a residential house consisting of ground and first floor and an outhouse with a grass in the premises measuring 80'x120' bearing No.5, (old No.341), upper palace Orchards, Sadashivanagar, Bangalore, bounded on East by site No.340, west by site No.342, south by site No.203 and north by road. 'B' schedule property consists of movable properties namely; singer 9 sewing machine, portable typewriter imported, jewels, books and other house hold articles. 'C' schedule properties consist of workshop equipments namely; lathe, drilling machine and vice.
4. It is contended by the plaintiff that himself defendant Nos.1, 4 and 5 are the children of Sri S.S. Murthy Rao and Smt. Rangamma. Defendant Nos.2 and 3 are the sons of the defendant No.1 and defendant Nos.6 and 7 are the daughter and son of the plaintiff. It is further contended that S.S. Murthy Rao constituted a Hindu undivided family, governed by Mitakshara school of Hindu Law and all the children of S.S. Murthy Rao were married during his life time. It is further contended by the plaintiff that she was residing with her husband after her marriage and the fourth defendant having acquired the citizenship of New Zealand is the resident of New Zealand from the year 1968 with his wife and children. Fifth defendant is residing with her husband in Kumbakonam. 10
5. S.S. Murthy Rao hailed from Tamil Nadu and inherited some of the properties from his father and he retired as a Deputy Director General of Posts and Telegraphs in the year 1956 and he was in Geneva for about nine years. During January - February 1981, S.S. Murthy Rao and Smt. Rangamma visited fourth defendant Dr. S. Narayana Rao in New Zealand and stayed with him for some time happily.
6. After the death of Sri S.S. Murthy Rao on 05.05.1983 and after the death of Rangamma on 18.01.1984, plaintiff and defendant Nos.1, 4 and 5 succeeded to the estate of S.S. Murthy Rao and Rangamma as both of them died intestate.
7. During his life time S.S. Murthy Rao had taken up an assignment on contract basis with Bharath Electronics Limited, with a sizable salary and other perquisites during the years 1962 to 1964. It is also contended that S.S. Murthy Rao invested his savings in stocks and shares in his name and also in the name of his 11 daughters and owned an imported car. Post retirement Sri Murthy Rao was receiving handsome pension and in the year 1960-61, he purchased a site in Sadashivanagar and built a substantial construction thereon ('A' schedule property). It is further contended that movable properties owned and possessed by Murthy Rao at the time of his death, is described in 'B' schedule properties and the movable properties mentioned in 'C' schedule properties are the self acquired properties of Smt. Rangamma as the same was donated by father of Rangamma to her and Murthy Rao during their marriage.
8. It is the further contention of the plaintiff that first defendant exercised dominant power over his father S.S. Murthy Rao. It is also contended that Smt. Rangamma continued to reside in 'A' schedule property even after death of Murthy Rao and therefore, naturally the movables owned and possessed by Murthy Rao and his wife Rangamma continued to be kept in the 'A' schedule property in the custody of first defendant. 12
9. After death of Rangamma, when fourth defendant visited India and demanded division of the estate left behind Murthy Rao and Smt. Rangamma. The matter was tried to be sorted out in the presence of his holiness of Swamiji of Admar Matt, Udupi. But, first defendant set up the Will in respect of suit schedule properties alleged to have been executed by Sri Murthy Rao and Smt. Rangamma and Codicil executed by Smt. Rangamma and since there is no amicable settlement, plaintiff was constrained to file the suit seeking partition.
10. Upon receipt of suit summons, defendant Nos.1 to 5 appeared through their counsel. Defendant Nos.6 and 7 remained absent and they were placed exparte. Defendant Nos.1, 4 and 5 filed their separate written statements, whereas defendant Nos.2 and 3 filed common written statement.
11. While defendant Nos.4 and 5 admitted the plaint allegations further contended that first defendant having the custody of 'B' and 'C' schedule movable 13 properties and they prayed the Court to decree the suit by allotting their 1/4th share as well.
12. In the written statement filed by the first defendant, relationship among the parties is admitted. So also it is admitted that S.S. Murthy Rao hailed from a village of Tamil Nadu. But, the allegation that Murthy Rao inherited some properties of his ancestors is denied. It is admitted by the first defendant about the employment of S.S. Murthy Rao and his retirement and the movable properties acquired by Murthy Rao during his tenure of employment. However, it is contended that movables acquired by him when he visited the foreign country were disposed of during his life time. Date of death of Murthy Rao and Rangamma is admitted by the first defendant, but first defendant specifically denied that Murthy Rao and Rangamma died intestate.
13. First defendant has specifically contended that Murthy Rao executed a Will on 11.02.1981. 14 Smt.Rangamma executed a Will on 11.02.1981 and another will on 25.07.1983 and a Codicil on 07.12.1983.
14. Based on such wills and codicil, first defendant denied the right of the plaintiff seeking share in the suit schedule properties. It is specifically contended by the first defendant that movables mentioned in 'B' and 'C' schedule in the plaint, some jewels were owned by Smt. Rangamma and in view of the family arrangements, that has taken place, in the presence of Swamiji of Admar Mutt, Udupi, the movables have been divided and therefore, sought for dismissal of the suit with costs.
15. Second and third defendants have filed their written statement which is practically similar to the written statement filed by the first defendant.
16. On the basis of the rival contentions of the parties, the Trial Court raised the following issues:
1. Whether the plaintiff proves that suit schedule 'A', 'B' & 'C' are the joint family properties?15
2. Whether the plaintiff proves that his parents i.e., S.S.Murthy Rao and Smt Rangamma did not execute any Will in favour of defendant Nos. 1, 2 & 3 ?
3. Whether the plaintiff further proves that the Wills were got executed by the defendant Nos. 1,2 & 3 by fraud?
4. Whether the plaintiff proves that there is no division of properties as per the alleged Wills?
5. Whether plaintiff proves that her mother Rangamma was not in a position to execute the alleged Will?
6. Whether the plaintiff proves that the 1st defendant has suppressed the real facts for his illegal gain in getting the Will ?
7. Whether the plaintiff proves that the Wills executed by her parents are neither valid nor genuine?
8. Whether the defendant Nos. 1 to 3 prove that the Wills were executed with the knowledge of the plaintiff?
9. Whether there is cause of action for this suit?
10. Whether plaintiff is entitled for 1/4 share in the suit schedule properties?16
11. Whether plaintiff is entitled for accounts from the defendants in respect of suit schedule 'A' properties?
12. If so, what order or decree ?"
17. In order to prove the case of the plaintiff, Sri.M.J. Vittal got examined himself as P.W.1 and one witness Chakrapani Rao as P.W.2. On behalf of the plaintiff, five documentary evidence were relied on which were exhibited and marked as Exs.P.1 to P.5, comprising of Ex.P.1 - letter; Ex.P.2 - memo of understanding; Ex.P.3
- letter dated 11.11.1983; Ex.P.4 - photocopy of codicil dated 11.12.1981; and Ex.P.5 - continuation of page of Ex.P.4.
18. On behalf of defendants, first defendant Krishna Rao got examined himself as D.W.1 and one of the attestors to the Will of Murthy Rao, S.S.Ramadas is examined as D.W.2 and one of the attester to the Will executed by Smt. Rangamma by name Krishna Rama Rao is examined as D.W.3. One Srikar is also examined as 17 D.W.4. Defendants in all relied on 53 documents which were exhibited and marked as Exs.D.1 to D.53, comprising of Exs.D.1 and 2 - Wills; Exs.D.3 to 6-Signatures; Ex.D.7- Sketch; Ex.D.8-Original Will; Ex.D.9-Letter of BEL ; Ex.D.10-Copy of letter; Exs.D.11 to 16-Income tax returns; Exs.D.17 to 26-Acknowledgmetns; Exs.D.27 to 34-Income tax returns; Exs.D.35 and 36-Copy of letter; Exs.D.37 to 42-Letters; Exs.D.43 to 47-Assessment orders; Exs.D.48 to 52 - Demand Notices; Ex.D.53- Valuation report.
19. Learned Trial Judge on conclusion of the Trial, heard the arguments of the parties in detail and decreed the suit of the plaintiff as under:
"The suit of the plaintiff is decreed partly in respect of the suit schedule 'A' property and therefore, the plaintiff is entitled to 1/4th share and its separate possession in the suit schedule 'A' property.
Similarly the defendant Nos.4 & 5 are also entitled to 1/4th share each in the suit schedule 'A' property, subject to payment of Court fee.18
However, the suit of the plaintiff for partition and separate possession in the suit schedule 'B & C' properties including the relief for rendering the accounts by the defendant No.1 is hereby dismissed.
Further, the partition of the suit schedule 'A' property can be effected by appointing the Court Commissioner.
No Order as to costs."
APPEAL GROUNDS:
20. Being aggrieved by the said judgment and decree, the above appeals have been filed by the first defendant and defendant Nos.2 and 3 respectively raising following grounds:
GROUNDS IN BOTH R.F.A.NOS.488/2008 AND 489/2008 The Court below committed a grave and serious error in law in decreeing the suit filed by the respondent No.1 for partition and separate possession of the suit 'A' schedule property by improper and erroneous appreciation of the material on record and this has resulted in gross miscarriage of justice 19 The Court below committed an error in holding that the main burden is on the Appellant/s to establish that Moorthy Rao and Rangamma had executed the wills and codicils in their favour. In this context, the Court below erred in failing to consider and appreciate that Issues 1 to 7 which were based on the plaint allegations made by the respondent No.1 clearly cast the burden on the respondent No.1 to prove that the wills and codicil were not genuine or valid documents and were obtained by fraud and as such, the respondent No.1 having failed to adduce any legal or acceptable evidence to prove Issues 1 to 7, the suit filed by her was liable to be dismissed.
The Court below committed an error in answering Issues 3, 5, 6 & 8 against the Appellant/s. In this context, the Court below erred in failing to appreciate that apart from the fact that there was neither legal nor acceptable evidence available on record to answer the said issues against the appellant/s, the judgment of the Court below is vitiated on account of there being no specific reasons or no findings on these Issues in the judgment and this has resulted in erroneous conclusion.20
The Court below erred in failing to appreciate that the plaint allegations and the evidence on record, especially PW-1(respondent No.1) clearly indicated that the burden of proving that Moorthy Rao and Rangamma had not the wills and codicils in question rested heavily on the respondent No.1 who had not discharged the burden cast upon her by adducing any legal or acceptable evidence and consequently, the claim of the respondent No.1 that the wills & codicils were not genuine documents was liable to be rejected.
The Court below erred in failing to appreciate that the unimpeached evidence of DW-2 and DW-3, the attesting witnesses to the wills and codicils, the evidence on record coupled with the various admissions in the evidence of the other attesting witness, PW-2 (examined by plaintiff) as well the various discrepancies, admissions & contradictions in evidence of PW-1 (respondent No.1) was sufficient to establish due execution and attestation of the wills and codicils. In this context, the court below has misread and misconstrued the aforesaid evidence and this has resulted in erroneous conclusion.21
The court below erred in failing to consider and appreciate the admissions in the evidence of respondent No.1(PW-1) who had clearly admitted that the signatures found on the wills, Ex-D-1 and Ex.D-2 were that of Moorthy Rao and Rangamma respectively and the said documents were confronted to PW-1 and marked in his cross- examination. It is submitted that these admissions coupled with the various other discrepancies, contradictions and admissions in the evidence of PW-1 in addition to the other material on record were sufficient to establish the due execution and attestation of the wills, The court below erred in rejecting the evidence of DW-2- Sri S.S.Ramdas, an independent witness apart from being a highly respected and designated senior counsel who is one of the attesting witnesses to the wills on the ground that DW-2 has no personal knowledge about the wills executed by Moorthy Rao and Rangamma. In this context, the reasoning of the court below at para 7.04 and 7.06 of its judgment to reject the evidence of DW-2 is wholly erroneous and unsound.22
The court below erred in failing to consider and appreciate the unimpeached and uncontroverted evidence of DW-2 with regard to due execution and attestation of the wills executed by Moorthy Rao and Rangamma. In this context, the court below failed to appreciate that apart from the fact that DW-2 was a highly respected designated senior counsel, his evidence with regard to due execution and attestation of the wills as well as the sound disposing state of mind of Moorthy Rao and Rangamma, the evidence of DW-2 had not been impeached or controverted in the cross- examination and the court below has misread and misconstrued the same and assigned flimsy and untenable reasons in rejecting his evidence which are not sustainable in law.
The court below erred in rejecting the evidence of DW-3, Sri Krishna Rama Rao, an independent witness who is also one of the attesting witnesses to the wills and codicils thereby holding that no reliance can be placed on the evidence of DW-3 to hold that the wills and codicils have been proved by the Appellant/s. In this context, the findings of the court below at paragraph 7.05 of its judgment is based on surmises and conjectures and by 23 improper appreciation of the evidence of DW-3 and other material on record.
The Court below committed an error in holding that the appellant-defendant No.1 has instigated his mother Rangamma to execute the codicil, Ex.D-9 on the ground that it was written on the letter-head of the appellant/s. In this context, the Court below failed to appreciate that Ex.D-9 was undisputedly written on the letter-head of late Moorthy Rao and not the appellant-defendant No.1 as wrongly held by the Court below. The court below erred in failing to consider and appreciate the unimpeached and uncontroverted evidence of DW-3 with regard to the due execution and attestation of the will executed by Moorthy Rao and the wills and codicils executed by Rangamma. In this context, the court below failed to appreciate that apart from the fact that the evidence of DW-3 was sufficient to prove due execution and attestation in addition to the testamentary capacity of Moorthy Rao and Rangamma, the said evidence had not been impeached in the cross-examination and the court below has misread and misconstrued the same 24 and assigned flimsy and untenable reasons in rejecting his evidence.
The Court below erred in holding that the evidence of PW-2, Chakrapani Rao was not sufficient to prove the due execution and attestation of the wills and codicil. In this context, the court below failed to consider the admissions in evidence of PW-2 was sufficient to establish due execution and attestation of the wills and codicils and the court below has misread and misconstrued the aforesaid evidence of PW-2 and this has resulted in erroneous conclusion. The Court below erred in failing to consider and appreciate the various inconsistencies, discrepancies and contradictions in the evidence, in particular the cross examination of PW-2 which establish that no reliance can be placed on his evidence to hold that the execution and attestation of the wills and codicils have not been proved by the appellant/s.
The Court below erred in failing to appreciate that the evidence of PW-2 who was examined on behalf of respondent No 1 did not support the contentions put forth by the respondents and 25 instead, the evidence of PWV-2 went a long way in proving the due execution and attestation of the wills and codicils The reasoning of the court below at paragraph 7.07 of its judgment in rejecting the evidence of PW-2 is wholly erroneous and unsound.
The court below committed an error in holding that the evidence of Appellant No.1(DW-1) was not reliable to prove the wills and the codicils. In this context also, apart from the fact that the reasoning of the court below at paragraph 7.08 & 7.09 of its judgment in rejecting the evidence of DW-1 is wholly erroneous and unsound, the findings recorded therein are based on surmises and conjectures and court below has misread and misconstrued the evidence of DW-1, DW-2 and DW-3 & this has resulted in erroneous conclusion. The Court below committed a serious error in holding that it was an admitted fact that the suit 'A' schedule property was the separate and self- acquired property of late Moorthy Rao and not the joint property of Moorthy Rao and Rangamma as borne out from the material on record. In this context, the Court below has misread, misinterpreted and misconstrued the pleadings 26 and evidence which clearly indicate that there was no such admission whatsoever by the Appellant/s in this regard and instead, the suit 'A' schedule property was clearly the joint property of Moorthy Rao and Rangamma.
The court below erred in holding that since the suit 'A' schedule property was the self-acquired property of Moorthy Rao and there was no partition between Moorthy Rao and Rangamma, both of them could not have executed the wills at Ex. D-1 and Ex.D-2 in favour of the Appellant/s. In this context, the court below failed to consider and appreciate the unimpeached and uncontroverted documentary evidence at Ex.D-11 to D-53 which clearly established that Moorthy Rao and Rangamma were joint owners/co-owners having 1/2 share each in the suit 'A' schedule property which was their joint property right from the beginning and as such, both of them were competent and entitled to execute the wills in favour of the Appellant/s. The reasoning of the court below at paragraph 7.09 of its judgment in holding that the wills and codicil are not reliable documents is wholly erroneous and unsound 27 The Court below erred in falling to appreciate that as per recitals of Ex D-1. the will executed by Moorthy Rao, Smt Rangamma was the only legatee and absolute owner of any residue, in particular in respect of 1/2 portion in the 'A schedule property and in view of the undisputed fact that Rangamma had expired subsequent to Moorthy Ran, her wills and codicil to the extent of her1/2 portion was perfectly legal and valid and Ex D-2, D-8 and D-9 were proper and valid documents pursuant to which the Appellant/s have become the owners of the suit 'A' schedule property.
The Court below erred in failing to appreciate that even as per the recitals of Ex.D-1, the will executed by Moorthy Rao, Smt. Rangamma was the sole legatee in respect of all properties which he may die possessed of but not otherwise disposed off in his will, if he predeceased her. Under these circumstances, in view of the undisputed fact that Rangamma expired subsequent to Moorthy Rao and also independent of the fact that she already owned and possessed half share in the 'A' schedule property, her wills disposing off her half share in the 'A' schedule 28 property were perfectly legal and valid and as such, Ex.D-2, D-8 and D-9 being proper and valid documents, the Appellant/s had become the owners of the suit 'A' schedule property pursuant to the said document.
The Court below erred in placing reliance on the undated, unexecuted and unattested hand written notes at Ex P-4 and P-5 and erroneously termed them as codicils thereby rejecting the wills and codicil at Ex.D-1, D-2, D-8 and D-9. In this context, the court below failed to appreciate the undisputed fact that both Ex P.4 and P-5 were not codicils at all as wrongly held by the Court below particularly when they had not been executed or attested as required in law and they were admittedly undated and had neither been executed nor attested and as such, no reliance could have been placed on Ex.P-4 and P-5 to hold that Ex D-1. D-2, D-8 and D-9 had not been established.
The Court below committed an error in failing to consider and appreciate that Ex.P-4 and P-5 produced by the respondent No. 1 himself and admittedly in Moorthy Rao's own handwriting were by themselves sufficient to establish the 29 genuineness and validity the wills at Ex.D-1 and D-2 executed by Moorthy Rao and Rangamma. The Court below committed an error in holding that as per the settlement talks claimed to have been arrived at before the Admar Mutt Swamiji in 1984 as evidenced by Ex P-1 and Ex, P-2, the wills D-1, D-2 and D-3 and Codicil Ex D-9 were not at all acted upon. In this context, the Court below failed to appreciate that no settlement was actually arrived at as per the terms: contained in Ex. P-1 and P-2 which would have the effect of creating rights in favour of the respondents and extinguishing the rights of the appellant/s in the suit 'A' schedule property and as such no reliance can be placed on Ex.P-1 and P-2 to hold that the wills and codicil were not acted upon.
The Court below committed an error in failing to appreciate the unimpeached and uncontroverted evidence of DW-1 that the wills and codicil were acted upon by all the parties to their knowledge much prior to the filing of the suit. And as such the findings of the Court below at paragraph 7.11 of its judgment are wholly erroneous and unsound.
30 The Court below erred in failing to consider and appreciate the contents of Ex.P-1 and P-2 produced by the respondent No.1 which clear establish that the respondents had admitted and accepted the wills at Ex. D-1, D-2 and D-3 as well as the codicil at Ex.D-9 coupled with the fact that the respondents were fully aware of these documents and consequently, the respondents were estopped from challenging or questioning the wills and the codicil executed by Moorthy Rao and Rangamma.
The Court below committed an error in placing reliance on Ex P-3, letter said to have been written by Rangamma on 11-11-1983 to hold that since the wills at Ex.D-2 and D-3 and the codicil at Ex.D-9 had not been referred to by her in her letter, the wills and codicil had not been proved by the appellant/s. In this context, the Court below failed to appreciate that the wills and codicil of Rangamma were secret documents and there was no need, requirement or occasion for her to mention about the same in her letter and as such, no inference can be drawn from Ex.P-3 to hold that the wills and codicil of Rangamma had not been proved.
31 The Court below having held that Ex P-3 refers to the will of Moorthy Rao at Ex. D-1 erred in not relying upon Ex P-3 to hold that Ex. D-1 had been duly proved by the appellant/s. In this context, the reasoning of the Court below to rely upon Ex.P-3 in order to uphold the claim of the respondents and to reject the claim of the appellant/s is wholly erroneous and unsound. The Court below committed an error in not placing reliance on Ex D-11 to D-53 produced by the appellant/s which clearly establish that the suit A schedule property belonged jointly to Moorthy Rao and Rangamma. In this context, the Court below erred in holding that it was an admitted fact that Rangamma did not own half share in the suit 'A' schedule property though there existed no such admission. The reasoning and the finding of the Court below in this regard are based on surmises and conjectures and contrary to the material on record.
The Court below committed an error in rejecting Ex. D-10, letter dated 7-11-84 at an undisputed point of time written by Chakrapani Rao, PW-2 which clearly establishes the wills and codicil executed by Moorthy Rao and Rangamma. In this 32 context, the Court below has assigned frivolous, flimsy. untenable and baseless reasons for rejecting this undisputed document and this has resulted in erroneous conclusion.
The Court below erred in holding that the judgments relied upon by the appellant/s were not applicable to the case on hand whereas the decisions cited by the respondents were fully applicable to the instant case. It is submitted that the reasoning of Court below at paragraph 7.15 of its judgment are wholly erroneous and unsound and contrary to the material on record. The judgment and decree passed by the Court below is otherwise illegal, unjust and opposed to the facts and circumstances of the case and the same calls for interference at the hands of this Hon'ble Court."
ARGUMENTS:
21. Sri Anant Mandagi, learned Senior Counsel, representing the appellants in both the matters, reiterating the grounds urged in the appeal memorandum, contended that the Trial Court has not properly appreciated the Wills executed by Sri Murthy Rao and Smt. Rangamma and has 33 wrongly decreed the suit as referred to supra resulting in miscarriage of justice.
22. He further argued that the trial Court misdirected itself in not properly appreciating the evidence of the attesting witnesses to the Wills and has wrongly come to the conclusion that Will executed by S.S. Murthy Rao has not been properly proved.
23. He also contended that the execution of the Will by S.S. Murthy Rao and two Wills and Codicil executed by Smt. Rangamma were in the knowledge of the plaintiff.
But despite such knowledge plaintiff contended in the plaint that by Sri. S.S. Murthy Rao and Smt. Rangamma died intestate. Therefore the plaintiff did not approach the Court with clean hands.
24. He further argued that the plaintiff being a party to Ex.P.2, at least she would have stated that there was a Will executed by S.S. Murthy Rao and Will and Codicil executed by Smt. Rangamma and the same is not 34 binding on the plaintiff. Instead of not mentioning the Will executed by parents of the plaintiff and filing a suit as if S.S. Murthy Rao and Smt.Rangamma died intestate is incorrect and said conduct of the plaintiff is totally ignored by the learned Trial Judge while passing the impugned judgment.
25. He also pointed out that D.W.2 being an attesting witness, has deposed before the Court that his father had drafted the Will at the instructions of S.S. Murthy Rao and Rangamma. He had signed the said Wills as an attesting witness and therefore, the evidence placed on record by the defense ought to have been accepted by the Trial Court inasmuch as there is no dispute that S.S. Murthy Rao was visiting the house of the scribe often.
26. He also contended that finding recorded by the Trial Court that Will executed by S.S. Murthy Rao and Smt. Rangamma is surrounded by suspicious circumstances, is not based on factual aspects, but is based on surmises and conjunctures and therefore sought for allowing the appeal. 35
27. He further pointed out that plaintiff has not filed any cross appeal and cross objection insofar as dismissal of the suit in respect of 'B' and 'C' schedule properties, exposes the hollowness in the claim of the plaintiff in respect of 'A' schedule property and thus, sought for allowing the appeal.
28. Per contra, Sri S. Sreevatsa learned Senior Counsel on behalf of plaintiff contended with vehemence that it is an admitted fact that Sri S.S. Murthy Rao hailed from Tamil Nadu and he had inherited some properties from his ancestors. No doubt, S.S. Murthy Rao had an employment in postal department and he retired from the postal department in the year 1956 and was drawing the pension and sufficient income. But there is no material on record to establish that suit properties are acquired by Sri Murthy Rao through self earning. He also contended that later on, he joined Bharat Electronics Limited as an advisor and derived sufficient emoluments from Bharat Electronics Limited. Out of the funds he received from the ancestral 36 property and from his own earnings, he purchased site and constructed a building which is more fully described in 'A' schedule.
29. He also pointed out that the alleged Wills and Codicil is ingenious concoction by first defendant in order to deny share to the plaintiff and other siblings of the plaintiff.
30. He further argued that first defendant being in dominant position, exercised his influence over S.S. Murthy Rao in getting the alleged Will executed. He pointed out that the answers obtained in cross- examination of attesting witness (D.W.2) has been rightly appreciated by the learned Trial Judge while appreciating the case of plaintiff and rightly decreed suit.
31. He also argued that Will executed by Sri. Murthy Rao and Smt. Rangamma is not properly proved. So also the alleged Codicil executed by Smt. Rangamma has not been properly proved by the first defendant by 37 placing suitable evidence and as such, the learned Trial Judge decreeing the suit of the plaintiff in respect of 'A' schedule property by granting 1/4th share is just and proper.
32. He further pointed out the fact that another attestor namely; Sri Chakrapani Rao who is examined as P.W.2, having stated that Will has not been properly executed, creates sufficient doubt as to the veracity of the Wills executed by Sri Murthy Rao and Smt Rangamma and therefore, the first defendant has utterly failed to prove the Will and as such, the learned Trial Judge was justified in holding that the alleged Will said to have been executed by S.S. Murthy Rao and Wills and Codicil executed by Smt. Rangamma are surrounded with suspicious circumstances and rightly granted the share to the plaintiff by decreeing the suit of the plaintiff in respect of 'A' schedule property and sought for dismissal of the appeal.
33. In support of his arguments, he has placed reliance as to the principles of law enunciated by Hon'ble 38 Apex Court in the case of Madhukar D. Shende v. Tarabi Aba Shedage, reported in (2002) 2 SCC 85. The relevant portion of the said decision reads as under:
"8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be 39 demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent:
"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and 40 convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict -- positive or negative.
9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies 41 the requirement of proving a will, the court would not return a finding of "not proved"
merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.
10. The factum of will having been executed by Bhagubai in favour of Chingubai, the sister's daughter, bequeathing the suit property is specifically alleged in the plaint. In the written statement excepting for a bare denial, there is no other pleading raised questioning the sane disposing capacity of Bhagubai at the time of execution of the will. It is true that the plaintiff Chingubai did not appear in the witness box but that is because she was indisposed. Her son has appeared in the witness box. The two attesting witnesses on account of being known to Chingubai's son, being his classmates, were known to the family, and therefore, were natural witness to be called to attest the execution of the will. On account of their acquaintance with the family, 42 they could have naturally known and identified the executant. Merely because of being classmates they would be interested in obliging their classmate's mother so as to benefit her and go to the extent of falsely deposing is too far-fetched an inference to draw. The contents of the will, coupled with oral evidence, show that for the last 25/30 years, Chingubai had taken care of Bhagubai and it was due to love and affection of Bhagubai for Chingubai that the former was bequeathing her properties in favour of Chingubai. Chingubai is none else than Bhagubai's sister's daughter and probably the only heir. There is nothing to suggest that Bhagubai had anyone else than Chingubai, who could be a closer heir or relation of Bhagubai and with whom Bhagubai could have spent her last days. No other relation of Bhagubai, who would have succeeded to the estate of Bhagubai if the will would not have been there, has come forward to dispute or to object to the will. The challenge is thrown by a stranger to the family and one who has trespassed upon the property."
43
34. In reply Sri Anant Mandagi, learned counsel vehemently contended that the Trial Court has not properly appreciated the material evidence on record especially while recording a finding that the first defendant failed to prove the Will executed by S.S. Murthy Rao and also the Wills and Codicil executed by Rangamma and thus sought for allowing appeal.
35. In respect of his contentions, he placed the reliance on the following judgments:
(1) Ganesan (D) through LRs vs Kalanjiam and Ors. (AIR 2019 SC 5682];
(2) H.Venkatachala Iyengar vs. B.N. Thimmajamma and Ors. [AIR 1959 SC 443];
(3) Shashi Kumar Banerjee and Ors. vs. Subodh Kumar Banerjee since deceased and after him his legal representative and Ors. [AIR 1964 SC 529] (4) Pentakota Satyanrayana and Ors. vs. Pentakota Seetharatnam and Ors. [AIR 2005 SC 4362].44
POINTS FOR CONSIDERATION:
36. In view of the rival contentions of the parties, following points would arise for consideration:
(1) Whether the first defendant has successfully established that S.S. Murthy Rao has executed the alleged Will on 11.02.1981 marked at Ex.D.1 and he further proves that Smt. Rangamma has executed the alleged Wills dated 11.02.1981 and 25.07.1983 and codicil dated 07.12.1983 and thus the plaintiff is not entitled to any share in the suit property?
(2) Whether the impugned judgment is suffering from legal infirmity or perversity insofar as decreeing the suit of the plaintiff in respect of 'A' schedule property and thus calls for interference?
(3) What order?
EVIDENCE ON RECORD:
37. In order to prove the case of the plaintiff, M.J. Vittal being the legal representative of plaintiff examined himself as PW-1 and he filed an affidavit in lieu of his examination in chief reiterating the contents of the plaint.45
In para 17 of the affidavit, he has deposed that alleged Will executed by S.S. Murthy Rao on 11.02.1981 is not genuine. Therefore, he deposed that plaintiff, defendant Nos.1, 2 and 4 are entitled to equal share in the suit 'A' Schedule property.
38. In his cross-examination, it is elicited that he was a stranger to the family of the S.S.Murthy Rao earlier to his marriage with plaintiff and he is a retired Air Vice Marshal. He has answered that he has acquainted that defendants and Murthy Rao has landed properties in Pallavalyam village, Tamilnadu.
39. On confrontation of the original Wills, he admits the signature of Murthy Rao & Rangamma in it. Therefore, both the Wills of Murthy Rao and Rangamma are marked as Exs.D.1, D.2 and D.8. Witness has also identified the sketch signed by Murthy Rao which is annexed to the Will as Ex.D.7. However, witness failed to identify the signature of Rangamma in the sketch. 46
40. He admits that he was acquainted with S.S. Ramdas S/o Sundara Swamy as he used to attend the functions in the house of Sundaraswamy. He admits that fifth defendant's husband Krishnamurthy Rao's brother is one Chakrapani. He admits that said Chakrapani was residing in the suit property in the first floor.
41. He has answered that there is no correspondence between plaintiff and fifth defendant or between him and husband of fifth defendant. He admits that after death of Rangamma, fifth defendant became patient of Cancer and she had a surgery at Kidwai Hospital, Bangalore. He has further answered that he is a signatory to the memorandum of understanding as an attesting witness. He admits that plaintiff, defendant Nos.1, 4 and 5 have subscribed their signatures to memorandum of understanding. He admits that memorandum of understanding was entered into after the parties were made aware of Exs. D.1 & D.2 in the presence of Swamiji (Admar Mutt). He has answered that 47 memorandum of understanding was not acted upon because first defendant brought an unsigned Codicil. He admits that Swamiji has advised to settle the matter amicably and parties have met Swamiji, two or three times. He admits that he had never enquired with Chakrapani or S.S. Ramdas about the Wills and Codicil executed by Murthy Rao and Rangamma. He admits that he came to know about the Wills and Codicil when photocopies thereof were shown to Swamiji.
42. In his re-examination, he has marked letter written by Murthy Rao to fourth defendant dated 15.04.1964 as per Ex.P-1. In his further cross- examination, he admits that after Court proceedings were initiated, fourth defendant sent Ex.P-1.
43. After the evidence of the first defendant is concluded, Sri Chakrapani Rao, one of the attesting witnesses to the Will executed by Murthy Rao and Rangamma is examined as PW-2. In his affidavit which is filed in lieu of his examination in chief, he deposed about 48 his appearance before the Court in pursuance of Court summons issued. He has deposed that he has signed the Wills executed by Rangamma and Murthy Rao. He has further deposed that he do not remember the day/date when Smt. Rangamma called him to sign certain documents. On the day, when he went to sign documents, Rangamma was bedridden. Further, on the day, he went to Murthy Rao's house, S.S.Murthy Rao, Rangamma and he was only present; where he signed the documents. He further deposed that in his presence, none signed the Will except himself. Likewise, while attesting the Will of Rangamma; presence of Krishna Rao, Bhagya and himself were present. He pleaded ignorance about the Codicil executed by Rangamma and Sri Krishna Rao, took his signature on the Codicil.
44. In his cross-examination, he admits that he is a Postgraduate and he retired as Additional General Manager in Bharat Electronics Limited. He admits that fifth defendant is the wife of his eldest brother Krishna Murthy; 49 his father Raghavendra Rao was a businessman in Kumbhakonam; he shifted to Bangalore in the year 1966 and Murthy Rao took an active role in joining him to Bharat Electronics Limited as a Probationary Engineer.
45. He further admits that himself along with his family members were accommodated by Murthy Rao and Rangamma in their house on a monthly rent of Rs.200/-. He admits that daughter and son-in-law of the fifth defendant were also residing in the out house of the suit schedule 'A' property.
46. He admits that his relationship with defendant Nos.1 to 3 is cordial. He has answered that he signed the Will of Rangamma as a last person as attesting witness and he has not seen the contents and annexures to the Will. He admits that he is a reader of detective novels and he is aware of sanctity attached to a Will as a solemn document. He admits that he came to know about the pendency of the case 20 years earlier to his cross- examination and his relationship with D.W.4 is cordial. 50
47. He has answered that he himself prepared the affidavit evidence after receiving the suit summons. He admits that he is acquainted with Senior Advocate Sundara Swamy, who was acquainted with Murthy Rao and Rangamma and he admits that S.S. Ramadas is S/o Sundaraswamy.
48. He also admits that he introduced DW-3 to the family of Murthy Rao and Rangamma as DW-3 was working under him and he was staying in outhouse of the 'A' schedule property. He admits that DW-3's relationship with Rangamma and Murthy Rao was cordial. He admits that since the inception of the case, first defendant was discussing with him about the case. He has answered that since 16 years have elapsed, he is not able to identify the signature of DW-3 in Ex.D-8. However, he has answered that Ex.D-8 (a) and D-9 (a) might be the signature of DW-
3.
49. He has further answered that he has no contact with fourth defendant. He admits that he has 51 attested Exs.D1 & D2 and Codicil of Rangamma without coercion and sound and disposing state of mind of Murthy Rao, Rangamma and they have signed the Wills and Codicil in his presence and later he attested them in their presence. However, he has not signed Codicil in the presence of Rangamma.
50. First defendant Krishna Rao is examined as DW-1. He has filed an affidavit in lieu of his examination in chief, wherein he has deposed that S.S Murthy Rao and his sons constituted Hindu undivided family. He deposed about the avocation of his father and thereafter, his employment in United State of America and Geneva. He deposed about the suit property being acquired by his father. He also deposed that when Admar Mutt Education Council opened the Poorna Pragna Education Centre in Palace Orchards in Bangalore. His father worked as Honorary Secretary being full charge of all activities of the school when Swamiji was occupied in Udupi for his 'Paryaya' and for the yeomen services rendered by him, in 52 developing the school, his father has been honoured by the Swamiji by awarding him the title 'Manu Kula Bhooshana'.
51. He also deposed that Murthy Rao did not inherit any ancestral property as the lands possessed by him in Pallapalayam, Tamil Nadu State, were settled in favour by his mother. He further deposed that his father was a pious man and had evinced interest in Music and he was playing flute and violin. He was a hobby photographer and had a home studio. He further deposed that he helped Narayan to set up a clinic and he helped him even when Narayan was a reader in pathology at Jipmer college, Pondichery. He further deposed that Narayan Rao shifted himself to New Zealand in the year 1967 and later on he settled there.
52. He further deposed that Murthy Rao performed fifth defendant's marriage in a grand scale and gave gifts to her generously. He further deposed that Narayan Rao was given higher medical education in Geneva. He further deposed about the investments made by his father and his 53 mother. He denied that his parents died intestate. He has deposed about the Wills and Codicil executed by his parents and denied the contentions that plaintiff and defendant Nos.4 and 5 have succeeded to the estate of his parents equally with him. He further deposed that suit schedule 'A' property is self acquisition of his father and there was contribution from Rangamma and thus his parents are the absolute and joint owners of the suit property.
53. He further deposed that his mother Rangamma was known for her intelligence and she was highly regarded in international circles, despite she did not had any formal education. He also deposed that Rangamma with her administrative skills and worldly wisdom could fluently speak English, Hindi, Kannada, Tamil and French language and managed the family and brought her children up in the Society.
54. He also deposed that he had not exercised any domination, influence over his parents and his parents 54 were sound enough to take appropriate decision of their own. He denied the custody of the movable properties mentioned in the suit schedule. He further deposed that soon after the death of Murthy Rao, he informed plaintiff and defendant Nos.4 and 5 that division of the property to be affected as per the Will dated 11.02.1981 executed by Murthy Rao which he came to know through Rangamma. He further deposed that he could not lay his hands to the Will and as per advice of Rangamma, he enquired Sri Sundaraswamy and his son Ramdas brought a bag containing papers of his father and she was able to find the original Will dated 11.02.1981. He deposed about the Will and Codicil executed by Rangamma.
55. He also deposed that after death of Rangamma, at the request of plaintiff, defendant Nos.4 and 5, Swamiji of Admar Mutt, Udupi held a meeting and suggested for the amicable division of the estate of Murthy Rao and he was willing to make some adjustments to avoid unpleasantness in the family and to buy peace and 55 Swamiji advised the division of properties amicably and he was agreeable for the same by sacrificing the interest created in him by the Wills and Codicil. He also deposed that he did not admit any document being executed in the year 1984 giving up his claim under the Wills and Codicil. He relied on the Wills of Murthy Rao and Rangamma dated 11.02.1981 and original Will dated 27.05.1983 executed by Rangamma and original Codicil executed by Rangamma on 07.12.1983.
56. In his cross-examination it is elicited that site bearing No.341, upper palace orchards, Sadashivanagar, Bangalore was allotted to his father in the year 1958 or 1959. He has answered that his father obtained loan from Kodanda Rama Society towards the construction of the house and loan was discharged by his father. He has answered that his father got married his mother when his father was aged 11 years and mother was aged 8 years. He admits that Rangamma purchased immovable property during the year 1950 in Cadalour and Coimbatore after her 56 marriage and he does not know the sale consideration. He has also answered about the employment of his father in different places. He has answered that his mother has not borrowed any money from anyone. He admits that there was no transfer deed in respect of portion of 'A' schedule property by his father to his mother. He has answered that his mother got share in 'A' schedule property through the Will. He admits his signature in Ex.P-1.
57. In his further cross-examination he denies the suggestion that his father has inherited 10 acres of wet land and coconut grove. To a specific question as to what happened to the sale of ancestral property, he has answered that there was no ancestral property.
58. He has answered that he studied in Switzerland and on return to India he started living with his parents till the year 1981 along with his wife and children.
59. He admits that his father had suffered heart attack in the year 1975. He denied the knowledge of his 57 mother being diabetic patient. However, he has admitted that his mother was Asthma patient for about 20 years earlier to her death. He admits that his mother had suffered facial paralysis and she was treated by Dr. Guruswamy at Madras.
60. He admits that in the year 1981 fourth defendant visited Bangalore and stayed for a brief period in suit schedule 'A' property when his son was being married. He has answered that at that juncture, his father had convened a meeting with his children and two daughters-in-law about division of 'A' schedule property. He denied that Rangamma was bedridden at that juncture. However, she was unwell and had severe cough. He admits that in the year 1982 his father was bedridden and admitted to Nursing home and fifth defendant Lakshmi was looking after him.
61. He has answered that before subscribing his signature to a document he would go through the document and understand and then sign the same. He has 58 answered that he has signed Exs.P.1 and P.2 under coercion. He has further answered that Narayana Rao PW.1 and plaintiff persuaded him to sign the Exs.P.1 and P.2. He has answered that Sunanda and Narayana Rao have not signed when he signed Exs.P.1 and P.2 as they were at Madras. He has stated that his wife has signed Exs.P.1 and P.2 and she was shown as a witness. He has answered that in the year 1984 meeting took place with Swamiji and Narayana Rao was in New Zealand. He has answered that during the year 1984 Swamiji directed with regard to the division of the property. He has answered that his mother used to write a letter in Tamil to her children.
62. In his further cross-examination he has answered that he did not have any discussion with Advocate Sundaraswamy except receiving a telephone call once, wherein he was advised to settle the matter amicably. He has further answered that he came to know about the Will of Murthy Rao in late June or early July 59 1983 for the first time. The Wills of Murthy Rao and Rangamma were kept in a bag brought by Sri S.S. Ramdas. He denied the suggestion that on 15.03.1984 there was a meeting in the office of Sundaraswamy to discuss about the division of the property left behind by Murthy Rao.
63. On confronting the letter dated 24.04.1984 witness admits the same and it was marked at Ex.C-1. He admits that during December 1982, his father was partially ill. In his further cross-examination he admits that despite his best search, he could not lay hands to written Wills and Codicil and two letters. He admits that Murthy Rao had shares in 'Madhura Coats' and 'Mysore Electricals'. He answered that in the year 1981, his father might have been aged 80 or 81 years and he was hale and healthy except some minor ailments. He also admits that his father had heart attack when he was aged 76 years and admitted to Srinivasa Nursing Home and he was further treated in North side Hospital, Malleshwaram and he was 60 treated by Dr. Suryananarayan Rao. He has answered that his father had hyper tension, angina pecporis, mixo cordial infraction and stroke (Thrombosis).
64. He admits that K.R. Krishnamurthy Rao has not acted as executor of the Will - Ex.D-1. He has answered that his mother had studied upto third standard in Tamil Medium, but she used to write Tamil, English and French. He has answered that after death of his father and when his mother was alive, they did not meet Admar Swamiji nor Swamiji visited their house. He admits that on 25.07.1983 his mother has executed Will and Codicil and Narayana Rao was in New Zealand during 1983. He has answered that Ex.D-3 was written in his mother's house and none else were present when her mother prepared the Will and the same was prepared at her instructions. He admits that in Ex.D-3 at page 1 there is a correction to the text in his handwriting. He has answered that those corrections were carried out at the instructions of his mother and his mother has signed the corrections. 61 He admits that Annexure-D3 contains signature of his father and his mother. To a specific question the witness has answered as under:
"Question: It is not mentioned in Ex.D.3 that the plan is annexed to the Will?
Ans. Though the Will does not specifically mention that the plan is to be annexed, a specific phrase in my mother's Will directs that the annexure to her 1981 Will shall be the relevant plan for her disposal of her estate."
[Note: Ex.D.3 in first page clause (2) of para 4, in the third line, there is an insertion after the word 'my death' as after reviving his Indian Citizenship signed by Rangamma. (The said portion is mutilated). There is no correction visible in the original document - Ex.D.3 in the second page.]
65. He admits that when Codicil was prepared, himself and his mother alone were present. He also admits that he has not contributed any money to Vidyapeeta. He admits that there is a clause in Ex.D-9 62 that property held by his mother and Radha Vittal (plaintiff) should be sold and proceeds should be given to Vidya Peeta Charity.
66. He further admits that second attesting witness to Will of Rangamma namely; Krishna Rama Rao is not related to him, but he is acquainted to him for several years as he was tenant in the out house of the suit property. He admits that both Chakrapani Rao and Krishna Rama Rao were working in Bharat Electronics Limited. He has answered that he does not know the reasons for his parents bequeathing the property in his favour in exclusion of others. He has answered that soon after he was in receipt of both the Wills executed by his parents, he communicated to sisters and brother. He admits that in Ex.P.2 there is a mention that income derived by his mother is not sufficient for payment of property tax, income tax, medical expenses. He admits that she did not have individual income. He admits that Will executed by his father there is no recital that his 63 mother is entitled to profits of fixed deposit. He admits that Mysore Electrical shares are in the name of both of his parents. Shares of batteries were in the name of his mother. He admits that the recital in Ex.P-3 that the rental income of the outhouse to be sent to Narayan. He admits that his mother possessed jewellery. He admits that his mother died when she was aged around 82 years. He admits that Admar Mutt Swamiji advised to settle the dispute amicably in respect of both movable and immovable properties and also gave a suggestion as to how it should be divided. He admitted that Ex.P-4 and P-5 which were handwritten notes. He admits that in Ex.P-5 his father had desired to modify the Will executed in the name of his wife. He admits that under the Will, major portion of the property given to him and it is unequal distribution of the property and there is no share allotted to daughters in the immovable property. He has answered that he offered 20% of property bearing No.341 to his brother, he wanted more share. He answered that after his mother died, he has divided jewels to each of his sister 64 and sister-in-law. But, he has no document in that regard. He denied the suggestions that all the three Wills are not genuine.
67. In his further examination in chief he has produced income tax returns of Murthy Rao for the year 1969-70 and income tax returns of Rangamma with acknowledgments marked at Exs.D-11 to D-34. The letters written by Rangamma & Murthy Rao to Income Tax Office are marked as Exs.D-35 to D-42. Assessment orders of Rangamma and Murthy Rao were marked as Exs.D-43 to D-47 and demand notices issued to Murthy Rao are marked at Exs.D-48 to D-52. Valuation report pertaining to suit property is marked at Ex.D-53.
68. S.S. Ramadas, one of the attesting witnesses to Exs.D-1 and D-2 is examined as DW-2. In his affidavit evidence, he deposed that he is practicing Advocate and his father is late Sundaraswamy was a designated Senior Advocate, Bangalore. He further deposed that Murthy Rao and Rangamma are their neighbours and family friends 65 and they used to attend religious discourse organised in their house every Friday. He further deposed that on 11.02.1981, he stayed in the house as his father had instructed him that Murthy Rao and Rangamma had an intention to execute the Will and he should attest the same. Accordingly, he made himself free to be present in the house at about 5.00 p.m.
69. He further deposed that his father prepared both the Wills and read over the contents of both the wills to Murthy Rao and Rangamma. Thereafter, Murthy Rao executed the Will by signing the same in the presence of Sri Sundaraswamy, Rangamma, himself and Sri Chakrapani Rao. Thereafter, he attested the Will and thereafter Chakrapani attested the same. Likewise, Rangamma executed the Will in the presence of himself, his father, Murthy Rao and Chakrapani Rao. He has attested the Will of Rangamma and thereafter Chakrapani Rao attested the same. Thereafter, Murthy Rao and Rangamma told his father to keep the original will in his 66 custody. He further deposed that more than two years thereafter as per the instructions of his father he handed over a bag containing some papers to Smt. Rangamma at her house. He identified his signature on Exs.D.1 and D.2 and also the signature of executor and another attesting witness.
70. In his cross-examination on behalf of the plaintiff, he admits that he used to converse with Rangamma in Kannada language, but she had Tamil accent of Kannada. He admits that Murthy Rao was closed to Admar Mutt Swamiji. He has answered that Murthy Rao and children were cordial, but he does not know the contents of the Will at Exs.D.1 and D.2. He has answered that he did not use to visit the house of Murthy Rao on a regular basis, but on occasions like of heads of religious Mutt are invited, he used to visit the house of Murthy Rao in obeisance. He admits that his father had not signed the Wills as a scribe. He also answered that he is not sure whether any plans annexed to the Wills and whether it was 67 signed by Murthy Rao. He admits that he had not attested the annexures to Exs.D.1 and D.2 and he does not know in whose handwriting the annexures are prepared. He has answered that Chakrapani Rao, another attesting witness was residing in the outhouse of suit property and he never attended any discourse in his house. He answered that he does not know at whose request Chakrapani Rao attested Exs.D-1 and D-2. He denied the knowledge of Rangamma having a week mind and he has answered that both Rangamma and Murthy Rao were looking normal. He denied the specific suggestion that Exs.D-1 and D-2 were got executed under the influence of first defendant.
71. Second attesting witness to Ex.D-3 is Sri Krishna Rama Rao. He is examined as DW-3. He deposed that he is acquainted with Murthy Rao and Rangamma and he was a tenant in the house belonging to Murthy Rao on a monthly rent of Rs.250/- when he was working in Bharat Electronics Limited as project engineer. Further in the year 1982 Murthy Rao expired and thereafter he has 68 started paying rent to Rangamma. He further deposed that in one evening Rangamma called him. When he went to her house, Rangamma was in her Bed Room. Chakrapani Rao, who was staying in the first floor of his house, was present there. Rangamma informed him that she intended to execute a Will and he and Chakrapani Rao should sign the Will as attesting witnesses and he consented for the same. As such he attested the Will after Rangamma and Chakrapani Rao signed the same in his presence.
72. He further deposed that in the first week of December, 1983 again Rangamma called him and told him to attest a Codicil prepared by her and himself and Chakrapani Rao attested the Codicil by signing the same. He further deposed that Rangamma was in good health condition when she executed the Will and Codicil. He identified Exs.D-3, D-4, D-8 and D-9.
73. In his cross-examination, he has answered that Chakrapani Rao was working as Deputy Manager in 69 Bharat Electronics Limited and he was not acquainted with first defendant. But, his wife and wife of first defendant knew each other. He has answered that he does not know the family affairs of first defendant. He has answered that he had come to India to give his evidence at the request of first defendant who had sent an e-mail. He has answered that he has conversed with Rangamma in English language. He has no knowledge of ailments of Murthy Rao and Rangamma and he is not aware of cook or the maid servant employed by Murthy Rao and Rangamma.
74. He has answered that Murthy Rao died in the year 1983 and he does not remember the date of death of Rangamma. He has answered that he does not remember the date on which Rangamma called him. He admits that through Chakrapani Rao, Rangamma called him to her house to attest the Will and Codicil and he cannot say the health condition of Rangamma on the day she executed the Will and Codicil. He has answered that after attesting 70 the will and codicil he left the place and he does not remember whether Chakrapani Rao stayed there.
75. One of the legal representatives of fifth defendant by name Srikher is examined as DW-4. In his affidavit evidence he stated that the relationship as per the pleadings is admitted and so also property left behind Murthy Rao and Rangamma. He has stated that his mother (fifth defendant) resided with her parents till she was married and thereafter she started residing with her husband at Kumbakonam. He has further stated that his mother has informed the activities of her parents and various assets accumulated by Sri Murthy Rao. He has further stated that Murthy Rao and Rangamma stayed with first defendant till their death and thereafter the movable and immovable properties are in the custody of first defendant and his grandparents during the life time of Murthy Rao and Rangamma, they had never hinted the execution of the Wills and Codicil.
71
76. After death of Rangamma, fourth defendant who is the New Zealand citizen came to India and division of estate left behind by Murthy Rao and Rangamma was raised. But first defendant evaded settling the matter amicably. At the intervention of Admar Mutt Swamiji, there was an unanimous agreement to resolve the dispute and at that juncture, the Wills and Codicil came to light. He further stated that despite bequeath under the Wills and Codicil, first defendant agreed to divide the property as per the Swamiji's suggestions. However, even after such suggestion, first defendant came with one more codicil said to have been executed by Sri S.S. Murthy Rao and Smt. Rangamma. He has stated that both the Codicils were undated and unsigned and were concocted to forestall the claim of plaintiff and defendant Nos.4 and 5.
77. In his cross-examination on behalf of first defendant it is elicited that fifth defendant was married in the year 1946 and she stayed in Kumbakonam till her death. He admits that he is a Science graduate and a 72 business man and staying in Kumbakonam with his parents and they have got 4 or 5 properties. He admits that his sister Jahnavi and another sister are married in the year 1975 and 1982 and are residing with their respective husbands and they are well settled. He has answered that he cannot give the details of properties mentioned in Plaint Schedule 'B' and 'C'. He admits that after death of his mother, his father was looking after the present case and he has no personal knowledge about the contents of the affidavit which is filed in lieu of his examination in chief. He admits that he cannot identify the signatures of Murthy Rao and Rangamma. He admits that his mother had informed him about the existence of Will by his grandparents and he has not perused the Will deeds. He admits that Chakrapani Rao is his uncle and he has attested both the Wills. He admits that he has seen Krishna Rama Rao (DW-3) who was a tenant who is one of the attesting witnesses to the Will of Rangamma. But he has no contact with him.
73
78. In view of above factual disputes, appellants sought for re-appreciation of evidence on record. DISCUSSION
79. In the case on hand, the self acquisition of the suit schedule 'A' property is in dispute. Relationship is not in dispute. Plaintiff filed the suit against the defendants for partition and separate possession of the suit property as referred to supra.
80. Though the plaintiff has contended that the suit property is purchased by utilisation of the joint family nucleus, no proper and plausible evidence is placed on record by the plaintiff in this regard except deposing that father of Sri Murthy Rao had some property at Kumbakonam.
81. On the contrary, the answers obtained in the cross examination of PW-1 and deposition of DW-1 in examination in chief coupled with other documentary evidence placed on record would sufficiently establish that 74 the suit schedule 'A' property is acquired by the self earnings of Murthy Rao. No evidence is placed on record to show that suit schedule 'A' property is acquired by utilizing the joint family nucleus of Murthy Rao's ancestors.
82. In the case on hand, the date of death of Murthy Rao is 05.05.1983 and his wife Smt. Rangamma died on 18.01.1984. In the absence of Will said to have been executed by Murthy Rao and Smt. Rangamma and the Codicil executed by Smt. Rangamma, all the parties suit would have been entitled to equal share in the suit property. It is the case of the first defendant that Murthy Rao and Rangamma during their life time executed Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9.
83. In order to better understand the factual dispute, it is necessary for this court to cull out the contents of Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9 which reads as under:
75
"Ex.D1 "This is the LAST WILL and TESTAMENT of Sri S.S.MURTHY RAO, aged about 80 years, son of Sri V.Srinivasa Rao, residing at No.341, Palace Upper Orchards, Bangalore-6, which I make this the Eleventh day of February One Thousand Nine Hundred and Eighty one (11-2- 1981):
1. I hereby revoke all my previous Wills and Codicils.
2. My family consists of myself, my wife Sow.0 Rangamma, our two sons S. Narayana Rao and S.Krishna Rao, Two Daughters -
Lakshmi Krishnamurthy and Radha Vittal. My son Narayana Rao is residing with his family in New Zealand. He has also taken up the Citizenship of New Zealand.
3. My properties now consist mainly of the following:
(1) One half share in Houses Premises No.341, situated at Upper Palace Orchards, Bangalore. The other hall share belongs to my wife Smt.Rangamma. The premises consists of a Main House, with a First Floor on a portion 76 thereof, Garage, an outhouse and some vacant land.
It has been agreed between myself and my wife that the portion of the Main Building shown by the digit 2 plus the Garage shown by the digit 4 in the annexed plan, should be mine and the First Floor on the Main House with the Staircase and the portion of the Main Building shown by Digit 1 as also the Outhouse shown by the Digit 3, should be treated As my wife's portion. The vacant spaces marked by the letters N, M. W, SE and NE, however, are to be treated as belonging to both of us, each having one half share therein.
(ii) A Fixed Deposit dated 27-12-1980, in Canara Bank, Vyalikaval, Bangalore, in a sum of Rs.20,000/- (Rupees Twenty Thousand) Jointly with my eldest son Narayana Rao and his children;
(iii) Some shares in Madura Coats Ltd., in the Joint Names of myself and my wife;
(iv) A few shares and deposit with M/s.
Mysore Electrical Industries Ltd, which is at present in Winding Up. These belong to my wife and are in any case presently of little value. 77
(v) Some monies in the Savings Bank Account with Canara Bank, Vyalikaval Branch, Bangalore.
4. I hereby direct that the properties left by me shall be dealt with as under:-
(i) Re:Premises No.341, Palace Upper Orchards, Bangalore:
(a) The portion in the main building shown by the digit "2" as also the Garage shown by the Digit "4" in the Annexed Plan, shall go to my second son Sri Krishna Rao for his use and benefit absolutely.
(b) My share and right to the open spaces in the premises held by me jointly with my wife, shall go to my second son Krishna Rao, subject to a right of way for the users of the other portions of the property belonging to my wife or her legatees, to the extent it is reasonably necessary.
(ii) Whatever Deposits or Shares that are held now or hereafter by me, jointly with my wife, sons or Grandsons, the same shall be taken by the Survivor/s, for their use and benefit absolutely.78
(iii) All household and personal effects, furniture, Movables and all other effects in my residence, shall go to my second son Sri Krishna Rao, for his use and benefit, absolutely.
(iv) All other properties which I may dies possessed of and which I have not disposed of otherwise by this Mill, shall go to my wife Sow.Rangamma, if she survives me and if not, to my son Krishna Rao and my two Daughters Lakshmi Krinamurthy and Radha Vittal, for their use and benefit, equally and absolutely.
5. I hereby appoint my son Sri Krishna Rao and my Son-in-Law Sri K.R.Krishnamurthy, to be the Executors of this Will.
IN WITNESS WHEREOF I have executed this Will in the presence of the Witnesses attesting hereunder, at Bangalore."
Sd/- Sd/-
Witnesses: Testator.
"Ex.D2
"This is the Last WILL AND TESTAMENT of Smt.Rangamma, wife of Sri S.S.Murthy Rao, aged about 79 years, residing at No.341, Upper Palace Orchards, Bangalore, which I make this the 79 Eleventh day of February, One Thousand Nine Hundred and Eighty one (11.02.1981);
(1) I hereby revoke all my previous Wills and Codicils.
(2) My family consists of myself, my husband Sri S.S.Narayana Rao and S.Krishna Rao and two daughters-- Lakshmi Krishna Murthy and Radha Vittal. My son Narayana Rao is residing with his family in New Zealand. He has also taken up the citizenship of New Zealand.
(3) Apart from my personal jewellery and clothing and some Shares and Deposits, the only immovable property which I possess, is a half share in Premises No.341, Palace Upper Orchards, Bangalore. The other half share belongs to my husband Sri S.S.Murthy Rao. The premises consists of a main house with a First Floor on a portion thereof, garage, an Out-house and some vacant land.
It has been agreed between myself and my husband that the portion of the Main Building shown by the Digit "1", the First Floor of the Main House with the Staircase and the Outhouse shown by the Digit "3", should be treated as mine and the portion of the Main Building shown by the 80 Digit "2" plus the Garage shown by the Digit "4" in the Plan annexed, should be treated as my Husband's portion. The vacant Spaces marked by the letters N, M, W, SE AND NE, however, are to be treated as belonging to both of us, each having one half share therein.
(4) I hereby direct that the properties left by me shall be dealt with as under:
(a) Re:Premises No.341, Palace Upper Orchards, Bangalore
(i) The portion in the Main Building shown by the digit "1" in the Annexed Plan, shall go to my grandson Sri Jagannatha Rao son of Krishna Rao, for his use and benefit absolutely;
(ii) The portion shown by the digit "3", that is, the Ground-Floor of the Outhouse, shall be taken by my son Sri Narayana Rao, if he or his wife or any of his sons revive their Indian Citizenship and take up residence in India permanently, within three years from the date of my death. If they do not satisfy this condition, the bequest to them, shall not take effect and the said portion shall instead be taken by my son Krishna Rao, for his use and benefit absolutely;81
(iii) The portion shown by the digit "5", that is, the First Floor over the Main Building, including the staircase leading to it, shall be taken by my son Narayana Rao, if he personally revives his Indian Citizenship and takes up residence in India Permanently, within three years from the date of my death. If he does not satisfy this condition, the bequest to him, shall not take effect and the said portion shall instead be taken by my daughter Smt.Lakshmi Krishnamurthy, for her use and benefit absolutely.
(b) Whatever jewellery and clothing I leave behind, shall be taken by my Daughters and Daughters-in-Law, for their use and benefit, equally and absolutely;
(c) The investments and credit balances in Banks, if my husband does not survive me, shall be taken by my sons and daughters equally.
(d) As regards 158 Standard Battery Company Shares of the value of Rs.100/- each, which are held jointly in my name and in the name of one or the other of my daughters, I direct that the surviving Joint holder shall become the sole holder and beneficiary thereof, absolutely.82
(e) As regards the 32 shares and the Fixed Deposit of Rs.30,000/- (Rupees Thirty Thousand), both with M/s.Mysore Electrical Industries Ltd. (Now in the course of Winding up), standing in the joint names of myself and my husband, the same shall be taken by my two daughters, equally and absolutely, if anything is realised.
(f) Whatever other properties I leave behind and not specifically disposed of as above, shall be taken by my husband, if he survives me, and in case he does not, by my children equally and absolutely.
5. I hereby appoint my Son-in Sri Krishna Rao and my Son-in-Law Sri K.R.Krishnamurthy Rao, to be the executors of this Will. They shall pay all dues, taxes, duties and liabilities, if any, payable from my estate, before distributing the legacies.
In Witness Whereof I have executed this Will in the presence of the witnesses attesting hereunder, at Bangalore."
Sd/- Sd/-
Witnesses: Testator.
83
"Ex.D.3 AND 8
"This is the LAST WILL AND TESTAMENT of Smt.RANGAMMA, wife of late Sri S.S.Moorthy Rao, aged about 81 years, residing at No.341, Upper Palace Orchards, Bangalore-560080, which I make this the Twenty fifth day of July, One Thousand Nine Hundred and Eighty Three (25-7-1983).
1. I hereby revoke all my previous Wills and codicils.
2. My family consists of myself, my 2 sons- Shri.S.Narayana Rao and Shri.S.Krishna.Rao, and 2 daughters Smt.Lakshmi Krishnamurthy. and Smt.Radha Vittal. My first son Narayana Rao. is presently with his family in New Zealand.
3. Apart from my personal effects and some Deposits, the only immovable property I possess is a half share in premises No.341, Upper Palace Orchards, Bangalore-560080. The other half share which belonged to my husband, late Shri.S.S.Moorthy Rao (who expired recently), is presently being disposed of in accordance with the terms of his last Will and Testament of 11.2.81. The premises consists of 84 a main house, with a first floor on a portion thereof, Garage, an outhouse and some vacant land, as described in the Plan annexed to my previous Will dated 11.2.1981, and annexed to this Will also. I hereby direct that the very same plan be the relevant document for execution of this Will.
It had been agreed between myself and my late husband Shri.S.S.Moorthy Rao that the portion of the main building shown by digit "1", the first floor of the Main House, with built and unbuilt areas, together with the staircase, referred to by Digit "5" , and the Outhouse shown by Digit "3", should be treated as mine and the portion of the Main house shown by Digit "2", plus the Garage shown by digit "4" in the plan annexed, should be treated as my husband's portion. The vacant spaces marked by the letters N.M.W.SE AND NE, however, are to be treated as belonging to both of us, each having one half share.
4. I hereby direct that the properties left by me shall be dealt with as under:
i) My share of and right to the vacant spaces marked by the letters, N.M.W.SE AND 85 NE, representing a complimentary half share of all vacant spaces shall go to my second son Krishna Rao for his use and benefit absolutely.
ii) The portion shown by the Digit "3", that is ? the Ground floor of the Out house, shall be taken by my first son Narayana Rao within 3 years from the date of my death. If he does not satisfy this condition, the bequest to him shall not take place, and the said portion shall instead be taken by my second son Krishna Rao, for his use and benefit absolutely. Within the 3 year period mentioned above, the property shall be enjoyed solely by my second son Krishna Rao.
iii) The portion in the building shown by
Digit "1" shall go to my Grandson
Chi.K.Jaggannath Rao, son of Krishna Rao, for his use and benefit absolutely.
iv) The portion referred to as Digit "5", that is the first floor over the main building with build and unbuilt areas together with the stair case leading to it, shall be taken by my Grandson Chi.K.Raghunath Rao, son of Krishna Rao, for his use and benefit absolutely.
v) Whatever Deposits, Shares and Credit Balances are held now or hereafter by me jointly with my sons, daughters-in-law, 86 daughters or Grandchildren, shall be taken by the survivor for their use and benefit absolutely.
vi) Whatever Deposits, shares and credit balances are held now or hereafter, by me exclusively, shall go to my second son, Krishna Rao for his use and benefit absolutely.
vii) All other properties, which I may die possessed of, and not disposed of otherwise by this Will, shall go to my second son Krishna Rao for his use and benefit absolutely.
5. I hereby appoint my second son Shri S.Krishna Rao to be the executor of this Will. He shall pay all dues, taxes, duties and liabilities, if any, payable from my estate, before distributing the legacies.
In WITNESS WHEREOF I have executed this Will in the presence of the witnesses attesting hereunder, at Bangalore.
Sd/- Sd/-
Witnesses: Testator."
"Ex.D.9
CODICIL dated seventh December, One
Thousand Nine Hundred and Eighty-three to the Last Will and Testament dated Twenty-fifth July, One Thousand Nine Hundred and Eighty- three 87 by Smt.Rangamma, wife of late Shri S.S.Moorthy Rao.
Codicil : Delete paragraph 4(v) and substitute the following:
4(v)(a): I direct that the ten Standard Battery shares held by me jointly with my daughter sow. Radha Vittal when found, be sold and the proceeds gifted to Vidya- peetah at Bangalore as charity.
4(v)b: of the seventy-nine Standard Battery shares held by me jointly with my daughter sow.Lakshmi Krishnamoorthy, I direct that thirty-nine be transferred at no cost to my daughter Sow.Radha Vittal for her sole and absolute enjoyment, the balance forty being retained by my daughter sow.Lakshmi Krishnamoorthy for her sole and absolute enjoyment.
4(v)c: whatever Deposits and Credit balances are held now or hereafter by me jointly with my sons, daughters-in-law, daughters or grandchildren, shall be taken by the survivor for the survivor's use and benefit absolutely.88
IN WITNESS WHEREOF I have executed this codicil to my aforesaid Will in the presence of the witnesses attesting hereunder, at Bangalore.
(RANGAMMA) TESTATRIX Signed by the above named testatrix in our presence at the same time and each of us has, in the presence of the testatrix, signed his name hereunder as attesting witness:
Sd/-
(K.R.Chakrapani Rao) 341, Sadasiva Nagar Bangalore- 80.
Sd/-
(M.N.Krishna Ram Rao) 341, Sadashiva nagar Bangalore - 560 080."
84. In the case on hand, the plaintiff has seriously disputed the Wills executed by Sri Murthy Rao and Rangamma and Codicil executed by Rangamma. According to counsel for plaintiff, there is a thick cloud of suspicion hovering over the above documents. Trial Court has 89 accepted the contentions of the plaintiff and disregarded the Wills and codicil referred to supra.
85. Therefore, it is the task of this court to find out whether the testators signed the Will after understanding the nature and effect of the dispositions in the Will and codicil when they were sound and disposable state of mind?
86. As per the bequeath made in the Will of Murthy Rao, his wife Rangamma became owner of half portion of the suit properties. As such, she did possess the right, title and interest in the suit properties to the extent of half portion. Thereafter she executed a Will and a Codicil. In other words, in view of the bequeath made in Wills and Codicil executed and marked at Exs.D.1, D.2, D.3, D.8 and D.9, the plaintiff is denied share in the suit properties.
87. In order to prove the Will, the first defendant examined himself and also one of the attesting witnesses to Exs.D.1, D.2 and D.8. Insofar as Ex.D.1 is concerned, 90 the first defendant examined Sri Ramdas as D.W.2. D.W.1 Krishna Rao who is the first defendant reiterated the contents of written statement. D.W.2 S.S. Ramdas Das is one of the attesting witnesses to the Will executed by Sri Murthy Rao and Rangamma. D.W.3 Krishna Rama Rao is one of the attesting witnesses to Ex.D.8 along with Chakrapani Rao who is examined as PW.2. These witnesses have specifically stated that the Wills and Codicil executed by Murthy Rao and Smt. Rangamma respectively.
88. D.W.4 Srikher is the legal representative of fifth defendant. In his examination in chief, he has also supported the case of the plaintiff. Therefore, the oral testimony of D.Ws.1 to 3 are the only material evidence in deciding the genuineness or proof of the Will executed by Sri Murthy Rao and Will and Codicil executed by Smt. Rangamma. Further, another attesting witness to the Will executed by Murthy Rao and Smt. Rangamma is one Chakrapani Rao. It is pertinent to note from the record that Chakrapani Rao was examined on behalf of the 91 plaintiff as PW.2, as an afterthought, after examination of Sri S.S. Ramdas as DW.2.
89. In view of above peculiar facts and circumstances of the case, it is the task of this court to consider whether Wills and Codicil have been properly proved in accordance with law in the light of the legal principles enunciated in the decisions relied on by the parties referred to supra.
90. How a Will is to be proved before a court of law is no longer res integra. The well accepted norms in respect of proof of a Will is that a propounder of a Will must place such evidence on record so as to establish that the disputed Will/Codicil passes through five important steps.
91. In this regard, it is worthy to place reliance on the celebrated judgment of Hon'ble Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others reported in AIR 1959 SC 443. The relevant 92 paragraphs of the same is culled out hereunder for ready reference:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it 93 provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be 94 decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is 95 his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
96
92. In a Judgment of this court in the case of J.T. Surappa and another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, reported in ILR 2008 KAR 2115 it is held as under:
"(A) INDIAN SUCCESSION ACT, 1925 --
SECTION 2(h) -- Will -- Proof of -- Legal requirements -- Duty of the Court -- Five steps to be considered -- HELD, Under the Act, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, the first step is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the Court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document -- FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize 97 the evidence with greater degree of care than usual -- The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will -- The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will -- The fifth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 --
SECTION 63 R/W SECTION 68 -- Execution of a Will under -- Attestation and Execution
-- Procedure -- HELD, The Will that is executed is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The Will is a document required by law to be attested. The execution of Will must include both execution and attestation.
"Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail -- The Court has to find out whether the Will bears the 98 signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the presence of the testator though it shall not be necessary that both of them should be present at the same time -- FURTHER HELD, Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63(c) of the Act. Therefore, the said document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whether such a Will is registered or not 99 registered, in the eye of law it makes no difference.
Even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law -- It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, as such it is valid and enforceable."
93. Gist of the legal principles enunciated in above decisions is that to succeed in proving the Will, the propounder of the Will is required to place satisfactory evidence that:
(i) the Will was duly signed by the
testator;
(ii) the testator at the time of signing the will was in a sound and disposing state of mind;
100
(iii) the testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will and lastly
(v) That the will is free from suspicious circumstances surrounding the execution of the Will.
94. It is needles to emphasise that no hard and fast or inflexible rules can be laid down for the appreciation of the evidence in respect of proof of a Will.
95. In the case on hand, as could be seen from Ex.P.2, which is a Memorandum of Understanding that the parties have entered into in the presence of the pontiff of Admar Mutt. Though, Ex.P.2 has been produced and relied on by the plaintiff as material evidence on record, pleadings of the plaintiff is totally silent as to Ex.P.2. In other words, the plaint averments clearly reveal that Murthy Rao and Rangamma died intestate. It is also pertinent to note that plaintiff and other children of Murthy Rao are parties to Ex.P.2. Therefore, there is a 101 suppression of material fact on behalf of the plaintiff. Be it what it may, it is the first defendant who is required to prove the Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9 being the propounder of Wills and Codicil.
96. In that regard, when the material evidence on record is appreciated, since the Will executed by Murthy Rao and Rangamma was the subject matter of Ex.P.2, the plaintiff cannot plead ignorance about the existence of Exs.D.1, D.2, D.8 and D.9. In other words, plaintiff cannot approbate and reprobate insofar as the existence of Exs.D.1, D2, D.8 and D.9. Plaintiff is also estopped from contending contra, having regard to the fact she is a party to Ex.P.2. So also the oral evidence of fifth defendant, who is examined as D.W.4 disputing the very existence of Exs.D.1, D.2, D.8 and D.9. Such contentions contrary to the very existence of Wills and Codicil, thus cannot be countenanced in law.
97. It is argued on behalf of plaintiff in disputing the Exs.D.1, D.2, D.8 and D.9 on the ground that the 102 attesting witnesses who are examined as D.W.2 and D.W.3 did not know the contents of the Wills and Codicil. As such, the finding recorded by Trial court in disbelieving the disputed wills and codicil is just and proper.
98. In the impugned judgment, the learned Judge in the trial court while appreciating the material evidence on record, made a mountain out of a molehill by reading too much into the lack of knowledge on the part of one of attesting witnesses Sri S.S Ramdas (DW2). Of course, trial court did not believe PW2-Chakrapani Rao as well (another attesting witness to will of Murthy Rao and Rangamma). Therefore, in this regard, it is necessary to find out the legal position as to, does an attesting witness of a Will is required to know the contents of the Will or the intentions of the testator.
99. Often, a question arises as to who is an attestor? As per Black's Law Dictionary, an Attestor is defined as "One who attests or vouches for." Therefore, it is necessary for this court to find out as to what exactly is 103 the role of an attesting witness in a given case in proving the Will.
100. An attesting witness is a person who puts his sign or mark on a deed or Will at the request of its creator, immediately after its execution, for the purpose of proving and identifying that it is executed by the maker of it. In case of a Will, an attesting witness is the one who witnesses the testator executing the Will by signing it. Thus, the execution and attestation of a Will are clearly distinct formalities. The former is the act of the parties; and latter is that of the witnesses.
101. Further, what is a sign or mark? The term "sign", as per Section 3 (56) of the General Clauses Act 1897, includes not only "mark" but grammatical variations and cognate expressions of both terms, as well. Sign is therefore a mark to authenticate a document as a binding one on the person whose sign or mark is so written or affixed on it.
104
102. In case of a Will, the witnesses are expected to see the testator sign the Will and then they sign it by themselves. Thus, attestation of a Will implies something more than merely subscribing a signature in the presence of a testator by someone who has seen the testator signing the document. A Will not attested is not a legally valid one.
103. When once, a Will is duly attested, the attestor/s during the process of proving the Will, can be examined so as to know whether the testator had the intention and sound mental capacity to execute the Will, when they are called upon before the court of law to testify the testator's signature in the Will.
104. Thus, an attestor of a Will basically ensures that it is the testator who signed the Will in his/her presence and he can testify its authenticity. Attestor is needed to testify the validity of the Will when someone questions the legality of the Will.
105
105. Further, the attestor can depose whether the testator was of sound mind while executing the Will and testator was clearly conscious of the contents of the Will. The attesting witness can observe the actions of the testator during the process of execution of the Will. In a given case an attestor may also be examined to prove that the Will was executed out of the testator's free choice. Thus, in general, an attesting witness need not know the contents of the will. His role is to make it clear that the Will was duly executed by the testator. Similarly, as per Section 67 of the Indian Evidence Act, if a document is alleged to be signed by any person the signature of the said person or his handwriting must be proved.
106. Thus, it can be safely concluded that in a given case where veracity or genuineness of a Will is called in question, the role of an attesting witness is to provide such necessary evidence to make the property distribution plan of the testator work as per his wishes in his absence. Therefore, an attesting witness is not just a ritualistic 106 signer of a document and his act is not restricted to mere signing of a document. The attesting witness is a key player in putting the plan of action of the testator into reality after the death of testator.
107. Having said so, the legal requirement relating to the execution and proof of Wills under the Indian Succession Act and Section 68 of Indian Evidence Act prescribes certain procedures. For ready reference, Clause
(c) of Section 63 of the Indian Succession Act is culled out hereunder:
"63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules--
(a)-(b) * * *
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the 107 testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
108. Further, Section 68 of Indian Evidence Act reads as under:
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence; [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless 108 its execution by the person by whom it purports to have been executed is specifically denied."
109. As per the mandate of clause (c) of section 63 of Indian succession Act, a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. Further, no particular form of attestation is prescribed. As such, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that all the attesting witnesses must put their signatures on the Will simultaneously or at the same time, in the presence of each other and the testator. 109 Further, Section 68 of Indian Evidence Act only prescribes that if a will is not attested, it shall not be used as evidence and further it can necessarily be proved by examining at least one of the attesting witnesses.
110. In Abdul Jabbar Sahib v. Venkata Sastril reported in (1969) 1 SCC 573 the Hon'ble Apex Court while considering the meaning of the word "attestation" in Section 3 of Transfer of Property Act is held as under:-
"To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign 110 or has received from him" a personal acknowledgment of his signature.
111. The need and necessity for stringent requirements of clause (c) to Section 63 of the Indian Succession Act has been succinctly elucidated and explained by Hon'ble Apex Court in H. Venkatachala Iyengar supra by dilating on the statutory and mandatory requisites in respect of proof of a will. The Hon'ble Apex Court had further highlighted the dissimilarities between the Will which is a testamentary instrument vis-à-vis other documents of conveyance. It is emphasised that the proof of a Will is called in question before a court after the testator has departed from the world and therefore, testator cannot say that the Will is his own. Therefore, there is onerous responsibility on the Court to consider the genuineness of the Will in the absence of the testator.
112. As could be seen from the legal provisions and the principles of law enunciated in the aforesaid decisions, attesting witnesses must therefore depose that each of the 111 attesting witnesses signed the instrument in the presence of the executant/testator. That would suffice the legal requirement in proving the Will. However, there is no bar in a given case, if an attestor in a position to speak about the contents of the Will or other family affairs of the testator as well.
113. In this background, when the material on record is analysed, the learned Trial Judge has concluded that D.W.2 did not know many of the events that happened in the family of Murthy Rao, therefore, he did not believe the oral evidence of D.Ws.2 and 3.
114. In the case on hand as discussed supra, both the attesting witnesses to the disputed Wills did not dispute that they have signed the Will executed by Sri Murthy Rao and Smt Rangamma. Thus, the finding recorded by the learned Trial Judge in the impugned judgment that the attesting witnesses did not know the details as to the family affairs of testators and contents of Wills and codicil and therefore Wills & Codicil cannot be 112 believed as genuine documents, cannot be countenanced in law.
115. The next question that needs attention of this court in upholding the genuineness of the disputed Wills is that improper distribution or bequeath under the Wills and Codicil.
116. Admittedly the contents of the Wills and codicil referred to supra answers the said question in abundance. The testators namely Murthy Rao and Rangamma had their own reasons in arriving at the conclusion as to bequeath and in the absence of contra evidence placed on record by the plaintiff, this court has to record a finding that mere disinheritance of other sharers or lesser share has been given to few sharers would not ipso facto be treated as suspicious circumstance to doubt the genuineness of the wills and codicil as is held by Hon'ble Apex Court in the case of Savithri and others Vs. Karthyayani Amma and others reported in (2007) 11 SCC 621. 113
117. Further, in the case of P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar reported in - 1995 Supp (2) SCC 664, the Hon'ble Apex Court has held that -
"It is the duty of the propounder of the Will to remove all the suspicious circumstances surrounding the Will. But such suspicion must be real, germane and valid and not fantasy of the doubting mind. Further it is also held that merely on the ground that the whole of estate was given to a son in exclusion to the daughter itself is not sufficient to generate suspicion regarding the Will."
118. While explaining the meaning of what is a suspicious circumstance surrounding a Will, in the case of Indu Bala Bose v. Manindra Chandra Bose reported in (1982) 1 SCC 20 the Hon'ble Apex Court explained the meaning of the word "suspicious" in the following words- 114
"Needless to say that any and every circumstances is not a "suspicious"
circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
119. It is argued on behalf of plaintiff that health condition of Murthy Rao and Rangamma was not sound in view of the admissions obtained in the cross examination of DW1 and therefore, a thick cloud of suspicion is hovering over the veracity of the Wills and Codicil.
120. But the material evidence on record is not sufficient enough to hold that physical ailments of both the testators interfered in mental fitness in taking appropriate decision. It is settled principles of law that sound and disposing state of mind is to be tested in a given case depending upon the facts and circumstances of that case.
121. In the case on hand, when such test is applied, the material evidence on record placed by the parties are 115 not sufficient enough to hold that testators did not possess required mental fitness at the time of execution of Wills and Codicil. Detailed cross examination of attesting witnesses on behalf of the plaintiff did not yield any plausible material in establishing weak or fragile mental fitness of the testators.
122. Further, though the propounder is expected to prove the Will by placing sufficient and cogent evidence, the propounder is not expected to prove a Will by mathematical certainty. The burden expected to be discharged by law is only to the extent that the propounder has to show the execution in terms of the essential statutory requirements under the Act; absence of suspicious circumstances; and mental fitness of the testator. Thus, while appreciating the material evidence placed on record, the court is not expected to look for strict proof. In a given case, the rule to be applied in such cases is the celebrated rule namely, "Arm Chair rule". 116 More so, while interpreting the contents of a Will. Said rule envisages that:
"You may place yourself, to speak, in (the testator's) armchair, and consider the circumstances, by which he was surrounded when he made his Will, to assist you in arriving at his intention."
123. As to the discharge of burden by the propounder of will, Hon'ble Apex Court in Shivakumar & Others. v. Sharanabasppa, reported in (2021) 11 SCC 277 has categorically held that if a person challenging the Will alleges fabrication or fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved by him. In the case on hand, plaintiff having joined the issue with regard to proof of Wills and Codicil did not lead any rebuttal evidence to establish that Wills and Codicil are fabricated or got executed by playing fraud or coercion on testators.
124. To sum up, it is enough to refer to one of the recent decisions of Hon'ble Apex Court in the case of 117 Kavita Kanwar vs. Mrs. Pamela Mehta and Others reported in (2021) 11 SCC 209, wherein Hon'ble Apex Court referred to almost all previous decisions right from H.Venkatachala Iyengar supra and held that in a given case a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. In the matter of appreciating the genuineness of the execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. It is further held that the Court is not required to apply Article 14 of the Constitution of India, to dispositions under a Will.
125. There cannot be any dispute with regard to the legal principles enunciated in Madhukar supra relied on by the learned counsel for respondent. In fact, in paragraph No.9 of the said judgment referred to supra, their lordships have ruled that when once the propounder adduces prima facie evidence in proving the competence of the testator 118 and execution of the Will in the manner contemplated under the law, the contestant opposing the Will should place such material on record rebutting the material evidence placed by the propounder as the onus would shift to the contestant of the Will. If any such evidence is placed by the person who opposes the Will, the onus would again shift back to propounder. In the case on hand, there is no rebuttal evidence placed by the plaintiff who is contesting the genuineness of the Wills and Codicil. As such, the onus did not re-shift to the propounder-first defendant. Therefore, the decision in Madhukar's case supra, is not of much avail to the respondent-plaintiff in their case being advanced to any extent.
126. Since, this court has discussed at length as to the legal principles in establishing the genuineness of a Will in a given case with authoritative pronouncements of Hon'ble Apex court, further discussion on the decisions relied on by the learned counsel for the appellants is not necessary.
119CONCLUSION
127. In view of foregoing discussions, this court is of the considered opinion that first defendant being the propounder of Wills and Codicil has succeeded in getting the Wills and Codicil marked as Exs.D.1, D.2, D.8 and D.9, have passed the test of "Pancha Padi" (all the five steps) as is held in J.T. Surappa's case Supra.
128. As such, the invariable inference this court has to draw is that the Wills and Codicil marked at Exs.D.1, D.2, D.8 and D.9 are true and genuine documents. Consequently, the contrary view taken by the trial Court in the impugned judgment is held to be suffering from legal infirmity and perversity. Accordingly, the judgment and decree passed by the trial Court needs to be set aside and suit of the plaintiff is to be dismissed with costs throughout.
129. Hence, the Point Nos.1 and 2 are answered in Affirmative.
120
130. REGARDING POINT NO.3: In view of the finding of this Court on Point Nos.1 & 2 as above, following order is passed.
ORDER
Appeals are allowed. Judgment and
Decree dated 3.1.2008 passed in
O.S.No.3578/1987 on the file of the I Additional City Civil & Sessions Judge, Bangalore, is hereby set aside.
Suit of the plaintiff is dismissed with costs throughout.
Sd/-
JUDGE MR/PL