Karnataka High Court
Veerabhadrayya S/O Gurupadeayyagol ... vs Mytrabai W/O Rachayya Mallikarjunmath on 14 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL No.200068/2014
Between:
1. Veerabhadrayya
S/o Gurupadayya Nandayyagol
Age: 40 years
Occ: Agriculture
R/o Kakhandaki
Tq. & Dist. Bijapur.
2. Irawwa
W/o Gurupadayya Nandayyagol
Age: 62 years
Occ: Agriculture
R/o Kakhandaki
Tq. & Dist. Bijapur.
... Appellants
(By Sri Ashok S. Kinagi, Advocate)
And:
MytraBai W/o Rachayya
Mallikarjunmath,
Age: 56 years
Occ: H.H. Work,
R/o Devar Hippargi
2
Tq. Sindagi, Now at
Kakhandaki, Dist: Bijapur-586101.
...Respondent
(By Sri M.V.V. Ramana and
Sri Sanganabasava B. Patil, Advocates)
This Regular Second Appeal is filed under Section 100
of CPC against the judgment and decree dated 16.12.2013
passed in R.A.No.88/2013 on the file of the III Addl. Dist.
Judge at Bijapur, dismissing the appeal and confirming the
judgment and decree dated 26.04.2013 passed in
O.S.No.56/2005 on the file of the I Additional Senior Civil
Judge at Bijapur.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This appeal has been admitted on 20.06.2014 to adjudicate the following substantial questions of law:
1) Whether the suit of the plaintiff was not maintainable in view of dismissal of her earlier suit for non-prosecution?
2) Whether the will in question was not proved in accordance with law?
3) Whether the lower Appellate Courts finding was perverse in ignoring the revenue entries in the name of appellants herein?"3
BRIEF BACKGROUND:
2. One Sri Danayya Math had three children namely, Sri. Gurulingayya Math, Sri.Sidramayya Math and Smt. Bhagirathi Bai. The above said Sri.Gurulingayya Math was married to Smt. Gangabai.
Smt. Gangabai had four brothers - Sriyuths Rachayya, Sanganbasayya, Gurupadayya and Girimallayya. The sister of said Sri. Gurulingayya Math - Smt. Bhagirathi Bai filed a suit O.S.No.71/1985 against her brother Sri.Sidramayya and Smt. Gangabai wife of deceased - Sri.Gurulingayya Math for partition and separate possession of her share in the properties left by her father Sri. Danayya Math. Said suit came to be decreed on 27.06.1991 and appeal filed against said judgment and decree came to be dismissed on 12.11.1992 and in the final decree proceedings i.e., FDP No.21/1995, 6 acres was allotted or given to Sri. Sidramayya. Smt.Gangabai got 17 acres 28 guntas. Said final decree 4 proceedings came to be closed on 29.07.2004 as not pressed.
3. Plaintiff Smt. Mytrabai is the wife of Rachayya Mallikarjun Math (who is the brother of Smt. Gangabai). First defendant is the younger sister of late Gurulingayya Math. Second defendant is the son of Gurupadayya (who was another brother of Smt. Gangabai). Third defendant is the mother of second defendant and wife of Gurupadayya.
4. Plaintiff filed the suit in question namely O.S.No.56/2005 for declaring that she is the absolute and exclusive owner in possession of the landed properties bearing R.S.No.429/1 measuring 9 acres 8 guntas, R.S.No.1070/1 measuring 17 acres 28 guntas and house property bearing CPC No.505 situated at Kakhandaki Village, Bijapur District, contending interalia that Smt. Gangabai namely, her husband's elder sister had executed a Will on 30.01.1997 in her 5 favour and as such claiming testamentary succession she filed the suit initially against first defendant only. Thereafter defendants 2 and 3 also came to be impleaded since they claimed right over the property by virtue of the revenue entries found in the Record of Rights. Trial Court, by order dated 28.10.2005 had allowed the said application for impleading and accordingly they were impleaded as defendants 2 and 3. First defendant though served with summons, did not contest and no written statement was filed. Second defendant filed written statement denying the averments made in the plaint. Will propounded by the plaintiff of Smt.Gangabai dated 30.01.1997 was denied and it was specifically contended in paragraph No.5 of the written statement that thumb impression of Sri Jagannath and signature of Sri Mallappa had been obtained by plaintiff on a blank stamp paper in connection with loan transaction of ` 10,000/- borrowed by Smt. Gangabai from Sri Jagannath in respect of one of the items of the 6 suit property namely R.S.No.1070 and it was also contended that said two persons Sriyuths Jagannath and Mallappa had denied the execution of the Will by filing their respective affidavits and contending that plaintiff obtained their respective thumb impressions and signatures on blank stamp paper in connection with loan transaction between Sri. Jagannath and Smt. Gangabai and plaintiff has created a false document styling the same as Will alleged to have been executed by deceased Gangabai. Hence, plaintiff was put to strict proof of execution and attestation of the Will alleged to have been executed by Smt. Gangabai in favour of plaintiff. Third defendant filed a memo on 12.12.2005 indicating thereunder that written statement filed by second defendant may be treated as her written statement also.
5. Trial Court on the basis of the pleadings of the parties, had framed following issues: 7
1. "Whether the plaintiff proves that late Gangabai executed a will on 30.1.1997 in favour of plaintiff, bequeathing the suit properties, after her death plaintiff becomes absolute owner in possession of the suit properties?
2. Whether the plaintiff is entitled for permanent injunction?
3. Whether the suit of the plaintiff is not maintainable in view of pendency of similar suit before Prl. Civil Judge (Jr.Dn.), Bijapur?
4. What order or decree?"
6. Plaintiff got herself examined as PW-1 and in all she examined six witnesses as PW-2 to PW-7 and she got marked documents at Exs.P1 to P50. Second defendant got himself examined as DW-1 and two witnesses were examined on behalf of defendants as DW-1 and DW-2 and he got marked Exs.D1 to D9. After hearing the arguments of the learned Advocates, trial Court decreed the suit by accepting the plea put 8 forward by the plaintiff and arrived at a conclusion that executrix Smt. Gangabai had lived nearly for four years after execution of the Will dated 30.01.1997 marked as Ex.P-7 and on account of denial of the execution of the Will by the attestors namely, PW-3 and PW-4, the evidence tendered by plaintiff by examining the scribe PW-2 and the Sub-Registrar PW-5, she had proved the contents as well as execution of the Will as against the hostility of an attesting witness. It was also held by the trial Court that attesting witnesses PW-3 and PW-4 had filed a memo admitting the thumb mark found on Ex.P-7 as that of deceased Smt. Gangabai and they had only disputed the contents of execution of the Will and as such, application of the plaintiff filed for referring Ex.P-7 for handwriting expert came to be dismissed as not pressed and second defendant on the lines of plea put forward by the attestors - PW-3 and PW-4, which was to the effect that they had signed on said document (Ex.P-7), since it was stated that it was prepared on the 9 basis of loan transaction and when there was no such loan transaction and said witness had failed to prove and the story put up by these two witnesses is false and as such, by taking recourse to Section 71 of the Indian Evidence Act and relying upon the admitted thumb mark of the deceased executrix found on Ex.P-7 and evidence of the scribe and the Sub-Registrar being acceptable, trial Court accepted the plea of plaintiff and suit came to be decreed. Trial Court also took note of the evidence of the scribe and the Sub-Registrar as noticed hereinabove and the fact that there was no dispute with regard to property being owned by Smt.Gangabai and her mental condition being sound and she had lived over a period of 3 ½ years to 4 years from the date of Will and had also participated in the legal proceedings, were the factors which swayed in the mind of trial Court to hold that plaintiff had satisfactorily established and proved the execution and contents of the Will Ex.P-7 as per the circumstances 10 enumerated under Section 71 of the Indian Evidence Act. It was also held by the trial Court that defendants have not pleaded fraud, coercion or misrepresentation and as such, it rejected the defence set up by the defendants. However, the evidence of PW-6 and PW-7 who claimed to have been present at the time of execution of Will Ex.P-7 was not accepted since they were not signatories to said document and as such their evidence was not taken into consideration. In conclusion, trial Court held that Will dated 30.01.1997 Ex.P-7 was duly proved and as such the relief sought for in the plaint came to be granted.
7. Being aggrieved by said judgment and decree, appeal came to be filed by defendants 2 and 3 in R.A.No.88/2013 before the III Additional District Judge, Bijapur. Reiterating the defence set up by them in the written statement, appellants preferred said appeal assailing the finding recorded on Ex.P-7 and contending 11 that PW-2 and PW-5 cannot take position of an attesting witness and as such trial Court could not have held that the Will was proved. It was further contended the findings recorded by the trial Court are contrary to law and evidence on record.
8. Per contra, first respondent-plaintiff defended the judgment and decree passed by the trial Court. Notice to first defendant i.e. respondent No.2 came to be dispensed with by first appellate Court. On the basis of the contentions raised by respective learned Advocates appearing for the parties, first appellate Court formulated following points for its consideration:
1. Whether the appellants/defendants-2 and 3 prove that, lower Court has committed serious error in holding that, plaintiff has proved due execution of the Will dated 30.1.1997 executed by deceased GangaBai?12
2. Whether the appellants/defendants-2 and 3 prove that, suit of plaintiff is not maintainable?
3. Whether the interference of this Court is required?
4. What order?
9. The Lower Appellate Court on re-
appreciation of entire evidence was of the view that the scribe - PW-2 had read out the contents of the Will to Smt.Gangabai testatrix in Kannada language, has approved the contents of said Will as true and he has also signed the Will as a scribe to the said Will, according to the scribe, had been prepared on the instructions of testatrix. It was further noticed by the first appellate Court that registration of the Will itself cannot dispense with the proof of its execution and on account of PW-3 and PW-4 - attestors to the Will having not supported the case of plaintiff, it was held that plaintiff was left with no other option except taking 13 recourse to Section 71 of the Indian Evidence Act and as such, had proved the due execution and attestation of the Will by other evidence. In the background of language employed in Section 71 of the Indian Evidence Act, it came to be held that it would not absolve a party propounding the Will of his obligation cast under Section 68 of the Evidence Act read with Section 63 of the Succession Act and by taking note of the judgment of the Hon'ble Apex Court in the case of JANKI NARAYAN BHOIR VS. NARAYAN NAMDEO KADAM reported in AIR 2003 SC 761 namely the rider for complying the provision of Section 71 of the Evidence Act is that propounder must exhaust all his remedies and only on such steps being taken, the propounder of the Will can take aid of Section 71 of the Evidence Act and prove the execution of the Will by other evidence and as such held that in the facts obtained, plaintiff had exhausted her remedy by examining the attestors - PW-3 and PW-4 and on account of said witnesses having not supported 14 the case of the plaintiff, she was entitled to take support from Section 71 of the Evidence Act to prove the execution and attestation of the Will by other evidence on record.
10. It was further held by the first appellate Court that there was no evidence to show that deceased Smt.Gangabai was suffering from any illness and as such she was not in a position to understand the consequences of execution of the document and she had also survived for more than three years after execution of Ex.P-7 and plaintiff having exhausted all her remedies to prove due execution and attestation of the Will in terms of Section 63 of the Succession Act read with Section 68 of the Evidence Act, was of the view that Section 71 of the Evidence Act was squarely applicable to the facts on hand for the plaintiff to prove the due execution and attestation of the Will by other evidence on record. It was further held that deposition of PW-2 15 scribe would disclose that he had read over the contents of Will - Ex.P-7 to Smt. Gangabai and also PW-3 and PW-4 and they had signed the Will and he had also signed the said document and had identified the signature of the attesting witnesses.
11. The Lower Appellate Court also took note of the evidence of PW-5 as regards execution of Ex.P-7 and the fact that it was read over in his presence to the executant and the attestors and as such it was held by the Lower Appellate Court that the evidence of PW-2 and PW-5 would fall in the category of 'other evidence' in terms of Section 71 of the Indian Evidence Act. The plea of PW-3 and PW-4 which was on the lines of plea put forth in the written statement filed by second defendant, which was to the effect that attestors had signed the document executed by Smt. Gangabai for discharge of loan borrowed by her from PW-3 was held as unacceptable evidence or that PW-3 and PW-4 had 16 signed on blank stamp paper since it is impossible to accept that an official, in discharge of his official duty will register a document which was on a blank stamp paper. As such, plea of PW-3 and PW-4 was rejected and lower appellate Court also took note of the fact that a memo had been filed by defendants admitting the signature of deceased Smt. Gangabai found on Ex.P-7.
12. The Lower Appellate Court also took note of the fact that defendants 2 and 3 are the sons of Sri Gurupadappa who was the beneficiary under the first Will dated 03.08.1982 - Ex.P-41 executed by Smt.Gangabai, which would have come into effect on the death of testatrix and Sri. Gurupadayya had undisputedly predeceased Smt. Gangabai and said Will Ex.P-41 also indicated that possession of property bearing R.S.No.429/1 was with Smt. Gangabai and it had remained with her. On these reasonings amongst others as assigned in its judgment dated 16.12.2013, 17 appeal filed by defendants 2 and 3 came to be dismissed by affirming the judgment and decree passed by trial Court.
13. I have heard the arguments of Sri Ashok S. Kinagi, learned counsel appearing for appellants and Sri M.V.V. Ramana, learned counsel appearing on behalf of Sri S.B. Patil, for first respondent. Perused the records. CONTENTIONS OF APPELLANTS (DEFENDANTS 2 & 3):
14. It is the contention of Sri Ashok S. Kinagi, learned counsel appearing for appellants that both the Courts below erred in not considering the fact that very same plaintiff had filed a suit for similar relief, which is now claimed in the instant suit and said suit had been filed by presenting the plaint before the Principal Civil Judge (Jr.Dn.) Bijapur and as per plaint averments found in plaint - Ex.D-1 it would indicate that relief claimed in the present suit is similar and identical to the relief claimed in the previous suit and said 18 unnumbered plaint - Ex.D-1 came to be rejected on account of non-compliance of office objection namely non-payment of requisite Court fee as evidenced from Ex.D-2 and as such present suit was barred by res- judicata or in other words, present suit was not maintainable. He would contend that it is hit by Order 9 Rule 8 CPC and as such he contends that present suit be dismissed by answering the first substantial question of law in favour of defendants 2 and 3 and against plaintiffs.
15. Elaborating his submission with regard to substantial questions of law 2 and 3, he would contend that both the Courts below erred in answering issue No.1 in the affirmative, since plaintiff had not proved due execution and attestation of Ex.P-7 namely, Will dated 30.01.1997 by relying upon the evidence of PW-2 and PW-5, since their evidence cannot be construed as an evidence tendered on behalf of attestors and they 19 could not be treated as attestors of Ex.P-7. He would also draw the attention of the Court to the finding recorded by the Court below whereunder it came be held that defendants had admitted the signature found on Ex.P-7 being the signature of Smt. Gangabai by filing a memo dated 20.02.2013 and even accepting said memo having been filed, it does not amount to proof of due execution and attestation of Will Ex.P-7. He would draw the attention of Court to the evidence of PW-3 and PW-4, who were said to be attestors according to the plaintiff and in their deposition they had denied attestation of Ex.P-7 and as such issue No.1 could not have been answered in favour of plaintiff and said finding ought not to have been affirmed by the first appellate Court.
16. On the issue of misreading of available evidence, he would contend that plaintiff had not produced any document to show that as on the date of 20 suit plaintiff was in possession and merely because defendants 2 and 3 had not filed any counter claim for setting-up title over the suit property, that by itself was not sufficient to decree the suit of plaintiff. He would also contend that no such issue was framed and burden having not been placed on defendants 2 and 3, question of proving same did not arise. He would further contend that Lower Appellate Court misdirected itself in affirming the judgment and decree passed by trial Court by opining that defendants 2 and 3 had not placed any documentary evidence to show the existence of loan transaction between Smt. Gangabai and PW-3 and in view of un-controverted evidence of PW-3 being available on record, it indicated that he had lent amount to Smt. Gangabai and same had not been disproved by plaintiff with any rebuttal evidence. He would also contend that finding of both the Courts below with regard to the manner in which defendants secured possession of suit property is perverse since no 21 such issue was cast by putting defendants 2 and 3 to discharge the said burden and as such, prayer for perpetual injunction ought not to have been granted. He would also contend that evidence of PW-5 - Sub- Registrar, which has been very heavily relied upon by both Courts for decreeing the suit, ought not to have taken his admission with regard to contents of Ex.P-7 having been read over to deceased Smt. Gangabai for arriving at a conclusion that it would satisfy the test of due attestation as contemplated under Section 68 of the Evidence Act or in other words, proof of execution of the document. He would also contend that beneficiary under the Will being plaintiff, had actively participated in execution of the Will and as such trial Court ought to have disbelieved due execution of Will by the executrix namely, Smt. Gangabai in favour of plaintiff and trial Court ought to have dismissed the suit. Hence, he seeks for the substantial questions of law No.2 and 3 being answered in favour of the appellants - defendants 22
- 2 and 3 and against respondent - plaintiff. In support of his submission, he has relied upon following judgments:
(i) AIR 1963 SC 1203: MST. KHARBUJA KUER VS. JANGBAHADUR
(ii) (1993) 1 Madras Law Journal 535:
CHIDAMBARAM PILLAI vs. MUTHAMMAL
(iii) AIR 1994 Orissa 111: KUMA DEI, VS. MD.
ABDUL LATIF
(iv) AIR 1959 SC 443: H. VENKATACHALA IYENGAR VS. B.N. THIMMAJAMMA AND OTHERS
(v) (2007) 7 SCC 225: APOLINE D' SOUZA vs. JOHN D' SOUZA
(vi) AIR 2007 SC 614: NIRANJAN UMESHCHANDRA JOSHI VS. MRUDULA JYOTI RAO
(vii) (2009) 4 SCC 780: YUMNAM ONGBI TAMPHA IBEMA DEVI vs. YUMNAM JOYKUMAR SINGH AND OTHERS
(viii) (2015) 4 SCC (Civ) 1: JAGDISH CHAND SHARMA vs. NARAIN SINGH SAINI (DEAD) THROUGH LRS
17. Per contra, Sri M.V.V. Ramana, learned counsel appearing for respondent - plaintiff has supported the judgment and decree passed by the trial 23 Court and would contend that at no point of time defendants had contended that deceased Smt. Gangabai was medically unfit or incapable of executing the Will and he would submit that execution of the document is not being disputed by the defendants particularly in the background of memo having been filed by them admitting the thumb impression found on Ex.P-7 as that of Smt. Gangabai and as such, trial Court as well as Lower Appellate Court had rightly appreciated the evidence available on record to arrive at a conclusion that there is valid execution of Will - Ex.P-7 and due attestation of same. He submits, said finding recorded by Courts below does not suffer from any error either in law or on facts and as such, he prays for answering the substantial questions of law in favour of respondent - plaintiff. He would also elaborate his submission by contending that no evidence was tendered by defendants 2 and 3 to demonstrate and establish the purported loan transaction which existed between 24 deceased Gangabai and PW-3 and as such both the Courts below have taken into consideration that it is a plea without proof. He would submit that Sections 68 and 71 of Evidence Act have to be read together and not independently or distinctly or separately. He would further contend that very fact that testatrix Smt. Gangabai was alive for four years even after execution of the Will Ex.P-7 would indicate that there was no suspicious circumstance surrounding the execution of the Will. Hence, he prays for dismissal of the appeal by answering substantial questions of law in favour of respondent - plaintiff.
18. In support of his submission, he has relied upon the following judgments:
(i) (2009) 11 SCC 1: RUR SINGH (DEAD) THROUGH LRS AND OTHER VS BACHAN KAUR
(ii) (2007) 11 SCC 621: SAVITHRI AND OTHERS vs. KARTHYAYANI AMMA AND OTHERS 25
(iii) (2005) 1 SCC 280: MEENAKSHIAMMAL (DEAD) THROUGH LRS AND OTHERS vs. CHANDRASEKARAN AND ANOTHER
(iv) (2002) 2 SCC 85: MADHUKAR D. SHENDE vs. TARABAI ABA SHEDAGE
(v) (1976) 1 SCC 630: NAVNEET LAL ALIAS RANGI vs. GOKUL AND OTHERS RE. SUBSTANTIAL QUESTION OF LAW NO.(1):
19. The suit in question i.e. O.S.No.56/2005 came to be filed on 18.02.2005 seeking for declaration that plaintiff is the absolute owner and in exclusive possession of suit properties by virtue of registered Will dated 30.01.1997 executed by Smt. Gangabai, W/o Sri Gurulingayya Math, in favour of plaintiff and also for consequential relief of perpetual injunction.
20. Prior to the institution of said suit, as rightly pointed out by learned counsel Sri Ashok S. Kinagi, the very same plaintiff had filed a suit (unnumbered) on the file of the Principal Civil Judge (Jr.Dn.) Bijapur for similar relief and registry of the trial Court in the said 26 unnumbered suit had raised an objection regarding valuation indicated in the plaint and as such, matter came to be listed before the Court. After taking into consideration the fresh valuation memo filed, trial Court has not directed the plaintiff by any order to pay requisite Court fee as required under clause (b) of Rule 11 of Order VII CPC. An order of rejection of a plaint for non-payment of deficit Court fee within the time granted by a Court would amount to a decree within the meaning of Section 2(2) of CPC and in such circumstances an appeal would be maintainable against such order of rejection of the plaint. Said situation had not been arisen in the case namely, plaint had not been rejected for non-payment of Court fee within the time allowed. On the other hand, perusal of said order dated 21.09.2004 - Ex.D-2 would disclose that valuation made by the plaintiff was held to be not correct and improper and as such, office objection came to be upheld and plaint came to be rejected. In other words, said Court 27 had not afforded the plaintiff an opportunity to pay deficit Court fee, if any, as determined by it.
21. Under clause (b) and (c) of Rule 11 of Order VII CPC the plaint can be rejected for non-payment of deficit court fee on being required by the Court to correct the valuation within a time fixed by the Court and the plaintiff fails to do so or where the relief claimed is properly valued but the plaint is returned upon paper insufficiently stamped, and plaintiff being called upon by the Court to supply the requisite stamp paper within a time fixed by the Court and plaintiff fails to do so. Proviso to Order VII Rule 11 CPC would indicate that time so fixed shall not be extended, unless the Court, for reasons to be recorded, is satisfied of the cause shown. Thus, enlarging the time for payment of deficit court fee or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court would necessarily mean and include that a time is to 28 be fixed by the Court for the plaintiff to comply with such direction or the time frame within which deficiency is to be made good or complied. The proviso would also indicate that power is vested to the Court to enlarge the time on twin conditions incorporated therein, if satisfied would vest the Court with the power to enlarge the time or extend the time to correct the valuation or supply the requisite stamp papers, as the case may be. Order dated 21.09.2004 -Ex-D2 does not disclose that trial Court in the unnumbered suit filed by the plaintiff had fixed any such time for the plaintiff to pay the deficit court fee.
22. Be that as it may. The substantial questions of law formulated herein above can be set at rest by virtue of express provision contained in Order VII Rule 13 CPC, which reads as under:
"13. Where rejection of plaint does not preclude presentation of fresh plaint - The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."29
A bare reading of above provision would clearly indicate that plaintiff is not precluded from filing a fresh suit on the same cause of action where plaint had been rejected for non-payment of Court fee. This view is fortified by the law laid down by the Apex Court in the matter of DELHI WAKF BOARD vs. JAGADISH KUMAR NARANG AND OTHERS reported in (1997) 10 SCC 192. Hence, substantial question of law No.(1) is answered in favour of plaintiff by holding that suit instituted by respondent in O.S.No.56/2005 was maintainable and dismissal of earlier unnumbered suit as per Exs.-D1 and D-2 did not preclude the plaintiff from filing fresh suit namely, suit in question.
RE. SUBSTANTIAL QUESTION OF LAW NO.(2) & (3):
23. The core issue in this appeal revolves around the Will dated 30.01.1997 which came to be marked as Ex.P-7 in the evidence of PW-1 inasmuch as, plaintiff is claiming to be a legatee under the Will propounded by 30 her and defendants are denying execution of said Will having been executed by executrix Smt. Gangabai and also contending that attestation of said Will has not been done in accordance with law.
24. Both Courts have concurrently held that plaintiff has proved execution of the Will - Ex.P-7 by Smt. Gangabai and as such suit came to be decreed by trial Court and confirmed by first appellate Court on re-
appreciation of evidence.
25. It is not in dispute that neither plaintiff nor defendants 2 and 3 are Class-I heirs of deceased Smt.Gangabai. One Sri Danayya Math had three children namely, Sri. Gurulingayya Math, Sri.Sidramayya Math and Smt. Bhagirathi Bai. The above said Sri. Gurulingayya Math was married to Smt.Gangabai. Smt. Gangabai had four brothers - Sriyuths Rachayya, Sanganbasayya, Gurupadayya and Girimallayya. The sister of said Sri. Gurulingayya Math 31
- Smt. Bhagirathi Bai had filed a suit O.S.No.71/1985 against her brother Sri. Sidramayya and Smt. Gangabai, wife of deceased Sri. Gurulingayya Math for partition and claiming separate possession of her share in the properties left by her father late Sri. Danayya Math. Said suit came to be decreed on 27.06.1991 and appeal filed against said judgment and decree came to be dismissed on 12.11.1992 and in the final decree proceedings i.e., FDP No.21/1995 Sri. Sidramayya was allotted 6 acres and Smt. Gangabai was allotted 17 acres 28 guntas in R.S.No.1070/1. Said final decree proceedings came to be closed on 29.07.2004 as not pressed.
26. Plaintiff Smt. MytraBai is the wife of Rachayya Mallikarjun Math (who was the brother of Smt. Gangabai). First defendant is the younger sister of late Gurulingayya Math. Second defendant is the son of Gurupadayya (who was another brother of Smt. 32 Gangabai). Third defendant is the mother of second defendant and wife of Sri. Gurupadayya.
27. Smt. Gangabai by virtue of having acquired title to suit properties under the decree made in FDP No.21/1995, was enjoying the same during her lifetime and she executed a Will on 03.08.1982 as per Ex.P-20 and Ex.P-41 in respect of land bearing Sy.No.429/1 measuring 9 acres 8 guntas in favour of third defendant's husband, who was her brother. However, said Will came to be revoked by way of codicil executed and duly registered on 30.01.1997 as per Ex.P-7.
28. In the light of rival contentions with regard to execution of the Will Ex.P-7, it requires to be noticed that Section 63 of the Indian Succession Act, 1925 mandates a Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affixing his/her mark on the Will or has seen some other person sign the Will, in presence and by the 33 direction of the testator/testatrix or has received from the testator/testatrix a personal acknowledgement of his/her signature or mark, or the signature of other person and each of the witnesses has signed the Will in the presence of the testator. Section 63 of the Succession Act reads as under:
63 (c). The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or 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."
29. A Will which is sought to be produced and due execution of such document is sought to be established during the course of trial, it is required to meet the mandate of Section 68 of the Evidence Act and it reads as under:
34
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
30. 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. It is well-settled law that one who propounds the Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is to be discharged by the 35 propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. Apex Court in the case of MADHUKAR D. SHENDE vs. TARABAI ABA SHEDAGE reported in (2002) 2 SCC 85 has held if evidence adduced is legal, convincing and satisfies the conscience of the Court and there is nothing unnatural about the transaction, mere conjectures or unfounded suspicion should not be permitted to sway the verdict that the Will has not been proved. It is held by the Hon'ble Apex Court 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, 36 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 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 hole; 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 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.
37
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 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."
31. When a Will is sought to be propounded by a party to the proceedings, the manner of construction of such will has been explained by the Hon'ble Apex Court in its authoritative pronouncement in the case of 38 NAVNEET LAL ALIAS RANGI VS. GOKUL AND OTHERS reported in (1976) 1 SCC 630 as under:
"8. From the earlier decisions of this Court the following principles, inter alia, are well established:-
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered;
but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others (1950 SCR 766, 772)].
(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy (41 IA 51, 72:21 IC 339:15 Bom LR1010)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense.... but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar].
(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will 39 as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(1953 SCR 232,240)].
(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative. The Court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(1963 SUPP 2 SCR 834, 839, 842)].
(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to 40 every testamentary intention contained in the will.
32. When a question arises as to whether a Will is genuine or forged or such document is not to be relied upon to prove except testamentary succession, the burden will always be on the propounder and it has been held by the Apex Court in the case of MEENAKSHIAMMAI (DEAD) THROUGH LRS AND OTHERS vs. CHANDRASEKARAN AND ANOTHER reported in (2005) 1 SCC 280 that propounder of a Will adducing evidence has to dispel any suspicious or unnatural circumstances attaching to such Will provided that there is something unnatural or suspicious about said Will. The law of evidence does not permit conjectures or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. It has been further held that well- founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the 41 foundation of a judicial verdict - positive or negative vide paragraph 21.
33. Section 63 of the Succession Act lays down the mode, manner and method of execution of an unprivileged Will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of the document, which is required by law to be attested or in other words, it speaks as to how a document required by law to be attested can be proved. In unequivocal terms, it mandates that due execution of a Will must be proved by examining atleast one attesting witness, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except when proving is permitted by leading secondary evidence. While making attestation there must be a animus testandi on the part of the attesting witnesses, meaning thereby through which he/she 42 intend to attest and extrinsic evidence at this point would be available. The burden is on the propounder to prove that the Will has been validly executed and is genuine. The propounder is also required to prove that the testator has signed the Will and was he/she has put his/her signature out of his own free will and volition and was having a sound disposition of mind at that point of time and had understood the nature and effect thereof. If sufficient evidence is brought by the propounder in this regard, the onus cast on the propounder can be held to have been discharged. In case of proof of Will, a signature of the testator alone would not prove the execution thereof. If a defence of fraud, coercion or undue influence is raised, the burden always would be on such person who raised such plea and for this proposition the judgment of the Apex Court in the case of SRIDEVI AND OTHERS vs. JAYARAJA SHETTY AND OTHERS reported in (2005) 2 SCC 784 can be looked up.
43
34. As to what should be the mode of execution of the Will and as to whether the testator/testatrix had signed in the presence of the attestor and vice-versa or there was no due attestation of a Will would always depend upon the facts and circumstances of each case as elicited in the evidence, where the attesting witnesses have affixed their signature or mark to the Will in the presence of the testator/testatrix and it is a pure question of fact and depends on appreciation of evidence obtained in each case. There cannot be any straight jacket formula in this regard as held by the Apex Court in the case of NARESH CHARAN DAS GUPTA vs. PARESH CHARAN DAS GUPTA reported in AIR 1955 SC 363. This judgment has been referred to by the Hon'ble Apex Court in the case of APOLINE D' SOUZA vs. JOHN D' SOUZA reported in (2007) 7 SCC 225 at paragraph 19 and held as under:
"19. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta whereupon again reliance has been placed, this Court has categorically held:44
It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted."
20. The ratio of the said decision does not assist the appellant as the mode and manner of proof of due execution of will indisputably will depend upon facts and circumstances of each case. It is of the propounder of the will to remove the suspicious circumstances, which has not been done so in this case.
35. As to whether Section 71 of the Evidence Act and Section 68 of the Evidence Act are to be read disjunctively or to be construed as independent distinct and separate provision came to be examined by the Hon'ble Apex Court in the case of JAGADISH CHAND SHARMA vs. NARAIN SINGH SAINI (DEAD) THROUGH LRS AND OTHERS reported in (2015) 4 SCC (Civ) 1 and held that even if Section 71 is assumed to be akin to a 45 proviso to the mandate contained in Section 63 of the Act and Section 68 of the Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. It was observed as follows:
"57.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the 46 evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to Bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.
57.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in the Commissioner of Income Tax, Madras Appellant Versus 47 Ajax Products Limited Respondent AIR 1965, Supreme Court 1358."
36. As already noticed hereinabove Section 63 (c) of Indian Succession Act would mandate for due execution of a Will - the testator has to sign or affix his mark to the Will; the signature or mark of the testator should indicate or appear that it was intended to give effect to the writing as a Will; has to be attested by two or more witnesses; and each of whom has seen the testator/testatrix signing or affixing his/her mark to the Will and in order to prove the execution of the Will is absolutely necessary that the testator must have signed the Will in the presence of the attestors or the testatrix must have personally acknowledged his signature in the presence of attestors. In proving the genuineness of the Will, it is required to be proved that two attesting witnesses have seen the testator sign or affix his mark and they have signed or affixed their mark in the presence of the testator. No form is prescribed for 48 attestation. It is not necessary that two attestors should be simultaneously present at the time of putting their signature or mark, but the requirement or rigour of clause (c) of Section 63 mandates that each of the attesting witnesses must have seen the testator sign or affix his/her mark to the Will or has received from the testator a personal acknowledgement of his/her signature or mark on the Will. The additional requirement is that each of the attesting witnesses shall also sign in the presence of the testator.
37. The word 'attest' is defined under Section 3 of the Transfer of Property Act and the definition reads as under:
"attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, 49 and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
38. To attest is to bear witness to a fact which means signing of the document to certify the attestation and his witness to the execution of the document. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document and after receiving the personal acknowledgment from the executant as regards the execution of the document. The essential conditions of a valid attestation are that two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement and each of them had signed the instrument in the presence of the executant to bear witness to the fact of execution. In other words, it is essential that the attesting witness has put his/her signature or mark namely animus 50 testandi for the purpose of attesting the signature of the executor/executrix. The essential ingredients of the proof of attestation is necessary and the person relying upon the document must establish that executant has signed or put his/her thumb impression before the attesting witnesses and the attesting witnesses have signed said document in the presence of the executant.
39. Further, mere attestation does not effect an admission of contents; attestation by itself does not attribute with knowledge of the contents of the document to an attesting witness; attestation does not itself imply consent.
40. In the background of aforestated position of law and as discussed hereinabove, the facts on hand are examined. There is no dispute between the parties that suit properties were acquired by deceased Smt.Gangabai under FDP No.21/1995. It is also not in dispute that deceased Smt. Gangabai had earlier 51 executed a Will on 03.08.1982 in favour of her brother Sri.Gurupadayya, certified copy of which was marked as Ex.P-20 and original came to be marked as Ex.P-41 related to R.S.No.429/1 namely, item No.1 of present suit O.S.No.56/2005. Said brother of Smt.Gangabai namely, Sri Gurupadayya expired on 13.04.1993 i.e., prior to death of Smt.Gangabai. In the instant case, the dispute between the parties as referred to herein above relates to the Will dated 30.01.1997 executed by deceased Smt. Gangabai in favour of the plaintiff. Said Will has been marked as Ex.P-7. The attesting witnesses to said Will are Sriyuths Jagannath Ramappa Golasangi and Mallappa Danappa Timashetty, who were examined as PW-3 and PW-4. However, they have denied the attestation.
41. A perusal of the evidence of PW-1 who propounded the Will Ex.P-7 would indicate that on 30.01.1997 deceased Smt.Gangabai had called PW-4 52 and PW-3 from Kakhandaki village to Bijapur requesting them to be the attesting witnesses to the Will, which was being executed by her. It is also stated by PW-1 that she along with Smt.Gangabai went to the office of the Sub-Registrar at which place PW-3 and PW-4 were present. Said Smt.Gangabai is said to have instructed PW-2 Sri Rajashekharayya Halayya Hiremath (scribe) to write the said Will. On instructions of said Smt. Gangabai, Will is said to have been written by PW-2 and said scribe PW-2 is also said to have read out the contents of the Will so drafted by him to Smt. Gangabai in Kannada language and she had approved the contents of the Will as true and correct. It is further stated that all of them went together to the office of the Sub-Registrar and presented the Will for registration. Said scribe has reiterated in his examination-in-chief that he had prepared the Will Ex.P-7 on the instructions of deceased Smt. Gangabai.
53
42. At this juncture itself it would be apt and necessary to deal with the contention of Sri Ashok S. Kinagi who has contended that the propounder of the Will namely the plaintiff had taken active part in the execution of the Will and as such it is to be construed as a document surrounded with suspicion or in other words, his contention is that the beneficiary under the disputed Will Ex.P-7 being plaintiff and she having taken active role in the execution of the Will, said document has to be held as one shrouded with mystery, cannot be accepted. A perusal of the evidence of PW-1 would clearly indicate that deceased Smt. Gangabai was residing with PW-1 i.e., her younger brother's wife, since she did not have any issues. She has also stated that she was the only close relative of deceased Smt.Gangabai and she was taking care of her and as such Smt.Gangabai had developed special love and affection towards her. She further states in her examination-in-chief that on 30.01.1997 said 54 Smt.Gangabai had called PW-3 and PW-4 and had requested them to come to Bijapur to act as attesting witnesses for the Will proposed to be executed by her by canceling the earlier Will executed by her in favour of the father of second defendant and husband of third defendant, since he had already expired on 13.04.1983. She specifically states in her examination-in-chief that Smt.Gangabai instructed PW-2 to prepare the composite deed of Will and to execute a fresh Will bequeathing the suit schedule property in favour of her (PW-1). She has also stated that on the instructions of Smt.Gangabai, the scribe PW-2 prepared or wrote the composite deed namely execution of the Will and cancellation of the earlier Will dated 03.08.1982 whereunder deceased Smt.Gangabai had bequeathed one item of suit property i.e. R.S.No.429/1 in favour of Sri Gurupadayya her deceased brother i.e., father and husband of defendants 2 and 3 respectively. She has also stated that contents of the Will was read over and explained by the scribe - 55 PW-2 and only on her approval of the contents of said Will to be true and correct, Smt. Gangabai had requested PW-3 and PW-4 to endorse the execution of said Will for which they consented and she also states that both PW-3 and PW-4 after having seen Smt. Gangabai affixing her signature, she (Gangabai) had affixed her LTM and thereafter all of them proceeded to the Sub-Registrar's Office for registration and at the office of the Sub-Registrar Smt.Gangabai was identified by Sri Mallappa - PW-4 who in token of having identified her has also affixed his signature. After execution of said Will, she has lived for almost four years. The Will is dated 30.01.1997. Smt.Gangabai expired on 15.05.2001 as evidenced from death certificate - Ex.P6. Suit in question came to be filed on 18.02.2005. Thus, between date of execution of the Will to the date of filing of the suit in question, 8 years have lapsed. In fact PW-3 one of the alleged attestors in his cross- examination dated 28.01.2013 admits that he knew 56 about Smt.Gangabai having obtained his signature on the Will and yet he says that he did not lodge any complaint regarding the signature obtained by Smt.Gangabai and his admission reads as under:
"Irayya met me xxxx. About 16 years back I came to know that Gangabai had obtained signature on will deed. I have not lodged any complaint regarding signature obtained of me by GangaBai. I have not purchased any lands. I have not borrowed xxx my signature."
(emphasis supplied by me) This admission would clearly indicate that PW-3 knew that Smt. Gangabai had obtained his signature on the Will - Ex.P-7 and yet he did not complain. Be that as it may. For the present, no opinion is expressed in this regard.
43. As to whether the Will in question - Ex.P-7 is said to have been duly proved as required under Section 68 of the Evidence Act read with Section 63 of the Succession Act in the light of the legal position 57 discussed herein above, when facts are examined, it would clearly indicate that in the written statement filed by second defendant there is denial of execution of the Will - Ex.P-7 by deceased Smt.Gangabai. In his written statement second defendant at paragraph-5 has specifically denied execution of the Will dated 30.01.1997 by Smt.Gangabai in the presence of PW-3 and PW-4. A plea has also been raised that thumb impression of Sri.Jagannath - PW-3 and signature of Sri. Mallappa - PW-4 in said Will had been obtained by the plaintiff on a blank stamp paper in connection with loan transaction of ` 10,000/- borrowed by Smt. Gangabai from Sri. Jagannath in respect of land bearing R.S.No.1071 of Kakhandaki village. A plea was also raised that said PW-3 and PW-4 have already filed their affidavits to the effect that Smt. Gangabai has not executed Will in their presence and she has not expressed a desire to bequeath the suit properties in favour of the plaintiff. They have also further stated 58 that plaintiff had obtained their respective thumb impressions and signatures on a blank stamp paper in connection with loan transaction between them and Smt. Gangabai and as such, it was pleaded that plaintiff created a false document styling the same as a Will alleged to have been executed by deceased Smt.Gangabai. Hence, plaintiff was put to strict proof of execution and attestation of said will Ex.P-7 by second defendant. It is in this background, both Courts below have examined the evidence adduced by the parties.
44. One relevant factor which requires to be noticed in the instant case is that plaintiff during the course of trial filed an application under Order 26 Rule 10A CPC for referring the disputed Will - Ex.P-7 to a handwriting expert to compare the disputed LTM of Smt. Gangabai found on Ex.P-7 with admitted LTM's found on Exs.P-20 and P-46. This application though 59 strongly resisted to by defendants 2 and 3 in the initial stage, later they filed a memo on 20.02.2013 admitting that thumb impression found on the Will - Ex.P-7 is the thumb impression of Smt. Gangabai and the contents of the said memo reads as under:
"Defendants 2 and 3 admits the thumb of deceased Gangabai on Ex.P-7 alleged Will dated 30.01.1997 without admitting the execution and due attestation of the alleged Will dated 30.01.1997 by deceased Gangabai in favour of plaintiff and denied the contents of the alleged deed dated 30.01.1997."
(emphasis supplied by me) Based on said memo, trial Court dismissed the application.
45. The purported attestors PW-3 and PW-4 after having entered the witness box on 28.01.2013 have denied the execution of the Will by deceased Smt.Gangabai. A perusal of the deposition of PW-3 would clearly indicate that there is not even a whisper 60 about denial of his thumb impression found in Ex.P-7. However, said witness on being treated hostile was permitted to be cross-examined by plaintiff and he admits in his cross-examination that he has put his thumb mark on Ex.P-7. However, he contends that Smt.Gangabai had borrowed hand loan from him (PW-3) and she had agreed to repay amount of ` 10,000/- so borrowed by her within one year and made a feeble attempt to contend that his thumb mark found on Ex.P-7 relates to loan transaction. In other words, he has tried to feign ignorance about his thumb mark found on Ex.P-7 or he having attested said document Ex-P-7 as attestor. It is because of this precise reason, his statement on oath of he not being an attestor to the Will has been discarded by the Courts below and it has also been rightly held that he is a witness who is not to be believed inasmuch as alleged affidavit of PW-2 denying execution of Ex.P-7 had been filed along with a memo by the counsel representing defendants on 61 19.02.2008 namely the affidavits of PW-3 and PW-4 disowning their attestation of Ex.P-7. However, in his cross-examination dated 28.01.2013 he completely disowned filing of any such affidavit in the instant case and to the specific question as to whether he was in the habit of affixing his thumb mark without knowing the contents of the document, he has stated that previously he used to affix his thumb mark without looking into documents or its contents but now he would affix his thumb mark only after going through the contents of the document.
46. The Hon'ble Apex Court while examining the rigour of Section 71 of the Evidence Act in the matter of Jagadish Chand Sharma's case referred to supra has held that Section 71 of the Evidence Act requires strict construction and its application would arise only in two contingencies namely, denial of execution of the Will by the attesting witnesses or said witnesses does not 62 recollect the execution of the document and it has been further held that such denial must be clear, unhesitant and failure to recollect must be real. The facts obtained in Jagadish Chand Sharma's case would indicate that the propounder of the Will said to have been executed by one Mr. Nathu Ram Singh filed an application under Section 276 of the Indian Succession Act 1925 for grant of Letter of Administration. It was contended that the testator had nursed great love and affection for him for the services rendered by him to the testator and he was not favourably disposed towards his sons for their disagreeable conduct and activities and as such the propounder contended that deceased late Sri. Nathu Ram Singh had executed a Will in his favour. The propounder of the Will was undisputedly clerk of the testator Sri. Natu Singh, who was managing the properties of deceased late Sri. Nathu Ram Singh. It is in this background the sons of Nathu Ram Singh who were arrayed as respondents in the suit for grant of 63 letter of administration appeared on being served with the notice of the proceedings and filed their objections contending that property which has been claimed to have been bequeathed in favour of the propounder under the disputed Will is a joint family property and testator had no absolute authority to execute the Will and it was also contended that testator had appointed the propounder of the Will as a rent collector and for said purpose he had endowed him with a power of attorney which was registered and on account of the propounder having not rendered his services truthfully, deceased Sri. Nathu Ram Singh had himself revoked the power of attorney and they also referred to several complaints lodged by the deceased testator himself against the applicant/propounder for misusing the power of attorney and misappropriating the rents collected by him. It was also contended that applicant/propounder had appeared as witness in a criminal case against the testator deceased Nathu Ram 64 Singh and he was also placed under suspension by his employer where he was serving as a Teacher. It is in this background the attesting witnesses came to be examined by the propounder of the Will. Said attesting witnesses AW-1 and AW-5 were examined on behalf of the propounder. None of these two witnesses have denied attestation absolutely. It was not a case of absolute denial either of execution of the Will or the attestation of the Will by them. However, AW-1 admitted his signature on the disputed Will and he also deposed that he is unable to remember and after being treated as hostile he was cross-examined and in the cross- examination he has stated that he is unable to say that he had signed the Will in the presence of testator even after being confronted with said Will. However, AW-5 on oath stated that he has seen the Will and identified his signature thereof and he also deposed to have signed the document in the presence of the testator. He however hastened to add that he has not seen the 65 testator signing the Will. He denied to have appeared before the Sub-Registrar or to have identified the testator before said authority. In the light of the signatures on the disputed Will being admitted and execution or attestation of the Will having been denied, the Hon'ble Apex Court held to the following effect:
"On a cumulative assessment of the evidence of AW 1 and AW 5, we are of the unhesitant opinion that Section 71 of the Act, is not invocable in the facts and circumstances of the case so as to permit the propounder/appellant to resort to any other evidence to prove the execution and attestation of the Will involved as comprehended therein. The account of the relevant facts bearing on the execution and attestation of the Will as provided by these witnesses though is thoroughly inadequate qua the prescriptions of Section 63 (c) of the Act does not amount to denial of execution or failure to recollect the said event as contemplated in this provision."
In this background it came to be held that Will was not proved and the propounder of the Will could not have taken recourse to prove said document by referring or relying upon Section 71 of the Act.
66
47. A perusal of the findings recorded by both Courts in the instant case with regard to Will-Ex.P-7 would disclose that both the Courts have held that Will- Ex.P-7 was executed by Smt. Gangabai and has relied upon the evidence of PW-2 and PW-5 namely the scribe and the Sub-Registrar to arrive at a conclusion that the Will in question is a registered document which was executed in the year 1997 and the executrix died in the year 2001 and the fact that PW-3 and PW-4 had filed a memo on 20.02.2013 admitting the thumb mark of the deceased Smt.Gangabai on Ex.P-7 and mere presence of plaintiff who is the beneficiary and who is also the propounder of the Will at the time of execution of the document cannot be construed as suspicious circumstances to disbelieve the execution of said Will. In the background of said finding, it came to be held by both Courts that plaintiff has satisfactorily established and proved execution of the contents of Will deed dated 67 30.01.1997 - Ex.P-7 as per the ingredients enumerated in Section 71 of the Evidence Act.
48. Hon'ble Apex Court in the case of H. VENKATACHALA IYENGAR vs. B.N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443 has held that the party propounding the Will or otherwise making a claim under a Will is required to prove the execution of said Will and under Section 67 of the Evidence Act, signature of said person must be proved to be in his handwriting and for proving such a handwriting under Sections 45 and 47 of the Evidence Act, the opinions of experts and person acquainted with the hand writing of the person concerned are made relevant and in conclusion it has been held, test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. It has been further held that unlike other documents, the Will speaks from the death of the testator and so, the testator who had already departed 68 the world cannot say whether it is his/her Will or not and as such this aspect 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 and held that the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator and the testator at relevant time was in sound and disposed state of mind and he/she had understood the nature of such disposition and affix his/her signature or thumb mark to the document out of his/her free will. It has also been held that when the evidence adduced in support of the Will is by disinterested persons and is satisfactory and sufficient to prove the sound and disposing state of testator/testatrix mind and his/her signature as required by law, courts would be justified in making a finding in favour of the propounder. However, the word of caution sounded by the Apex Court in the said 69 judgment is, where the Will if surrounded by suspicious circumstances like the signature of the testator/testatrix may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator/ testatrix may not remove the doubt created by the appearance of the signature, the condition of the testator/testatrix mind may appear to be very feeble and debilitated, where mental capacity to dispose of the property is doubtful, distribution is unfair or the document itself indicating that said disposition may not be the result of the testator's/testatrix's free will and volition and in such cases Court would definitely call upon the propounder to remove all such suspicious circumstances surrounding it. It has been held that there is no hard and fast or inflexible rule which can be laid down over the appreciation of the evidence vide paragraph-22.
70
49. Keeping the authoritative pronouncement laid down by the Apex Court in the Venkatachal Iyengar's case referred to herein supra, when the facts on hand are examined it would clearly disclose that defendants are not disputing the thumb impression found on the Will Ex.P-7 as not being that of the testatrix namely Smt. Gangabai. On the other hand, they admit that the thumb impression found on the said document is that of Smt. Gangabai and to the said effect they have also filed a memo on 20.02.2013. In fact PW-3 and PW-4 also do not dispute that on the date said document was registered they were present at the office of the Sub-Registrar and they also admit that thumb mark found on Ex.P-7 is theirs. On the other hand they raise an entirely different plea as to why they went to the Office of Sub-Registrar and have denied the attestation of said document. It is in this background, both the Courts have held that attestors have denied attestation of the Will - Ex.P-7 and as such, have taken 71 recourse to Section 71 of the Evidence Act, particularly in the background of absolute denial of execution of the will Ex.P-7 by the attestors PW-3 and PW-4.
50. The Hon'ble Apex Court in Jagadish Chand Sharma's case referred to herein supra has held that at the time of testing the document (Will) for its validity, understandably the testator/testatrix would not be available and as such the stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation, more so, many a times the manner of disposition of property would be in stark departure of the prescribed canons of devolution of property to the heirs and legal representatives of the deceased and held that Section 63 (c) of the Succession Act and Section 68 of the Evidence Act is thus befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor. It has been further held that legislatively 72 prescribed essentials of a valid execution and attestation of a Will under Section 63 (c) of the Indian Succession Act are mandatory in nature, so much so, that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property and the interplay of Section 63 (c) of the Indian Succession Act as also Section 68 and 71 of the Evidence Act and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. It is further held that propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the 73 document or authenticate real forgetfulness of such fact. In fact it has been held that Section 71 of the Evidence Act cannot be invoked to facilitate a roving pursuit and it is not a substitute to Section 63(c) of the Succession Act and Section 68 of the Evidence Act and it cannot be invoked to supplement such failed speculative endeavour.
51. As already noticed hereinabove, Apex Court in Jagadish Chand Sharma's case referred to supra has held that, even if assumed that Section 71 of the Evidence Act to be akin to a proviso to the mandate contained in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. In other words, it has been held by the Apex Court that Section 71 of the Evidence Act cannot be used as a supplement to Section 63 (c) of the Succession Act and Section 68 of 74 the Evidence Act. It is because of this precise reason both the courts below having taken note of the fact that there is absolute denial of the execution and attestation of the Will - Ex.P-7 by PW-3 and PW-4, recourse to Section 71 of the Evidence Act has been taken to. There cannot be any fault found with the Courts below in this regard.
52. Though Mr. M.V.V. Ramana has made a valiant attempt to contend that all the three provisions are to be read as supplementary and complementary to each other, in the light of the authoritative pronouncement of the Apex Court in Jagadish Chand Sharma's case referred to herein supra, undertaking such exercise would be alien to the established principles of law and it would lead to destructive interpretation of Section 63 of the Succession Act and Section 68 of the Evidence Act. As such, said contention is not accepted and it stands rejected. 75
53. Coming back to the core issue as to whether plaintiff - propounder of the Will having proved the execution of the Will dated 30.01.1997 - Ex.P-7 when said document is read in conjunction, findings recorded by the Courts below as well as the deposition of PW-2 and PW-5 it would disclose that PW-2 who was the scribe and who was the disinterested person has in unequivocal terms stated that deceased Smt. Gangabai had given instructions for him to write the Will in question and on her instructions he has reduced her wish into writing in the stamp paper of Rs.100/- brought by her and PW-3 and PW-4 were also present at the time of wish of Gangabai being reduced into writing as per Ex.P-7. He has further deposed that after writing the Will, he explained the contents of the same to the executrix and after being satisfying with the contents of the document and voluntarily out of her own free will and volition in the presence of the attestors she had affixed her thumb impression and he has identified the 76 signature of the attestors. In the cross-examination, it has been suggested to said witness that writing of Ex.P-7 commenced at about 10.00 a.m and it was closed around 12 noon and when his cross-examination is read along with contents of Ex.P-7, it would indicate that said document was presented for registration at about 12.00 noon. In other words, the evidence of PW-2 synchronizes with the contents of Ex.P-7. In fact the signature of Sri Mallappa Timashetty PW-4 identified by him as Ex.P-7(a) and (b), he states that he has identified the thumb mark of Smt.Gangabai before the Sub- Registrar PW-5. No suggestion had been made to this witness about either physical or mental incapacity of the testatrix to execute said document or her mental faculties being incapable of giving instructions to PW-2 for settling the properties as per her wishes so as to raise a doubt with regard to her mental capacity or she being under any infirmity to doubt about her capacity to execute the Will under which disposition of the 77 properties have taken place. Absolutely there is no such suggestion so as to create a doubt in the mind of the Court to raise a doubt of any suspicious circumstances surrounding the execution of the Will deed. In fact, PW-3 who has admitted in his examination-in-chief that his mother and deceased Smt.Gangabai - executrix as well as the mother of PW-4 are good friends and has also admitted that the deceased Smt.Gangabai was taken care of by plaintiff during her last days. In fact, none of these witnesses namely PW-2, PW-3 and PW-4 have been suggested about any mental or physical incapacity of the executrix at the time of executing the Will or during said period. It is because of this precise reason both the Courts did not raise any issue in that regard namely, with respect to sound state of mind of the executrix to execute the Will in question.
78
54. Mr. Ashok S. Kinagi has contended that there is inconsistency in the evidence between PW-2 and PW-5 and as such said inconsistency itself is to be construed as suspicious circumstance surrounding the execution of the Will, this Court is not inclined to accept said plea for reasons more than one. Firstly, minor discrepancies even if any, would not be a good ground to disbelieve the execution of a Will. The disputed Will was executed by Smt. Gangabai in the year 1997. PW-5 Sub-Registrar was examined in the year 2013 i.e. after a lapse of almost 16 years by which time age has catched- up with him, memories is bound to fade with regard to micro details and even otherwise, the entire evidence has to be taken into consideration. For this proposition, judgment of Division Bench of this Court in the case of PUTTANNA SHETTY (DECEASED) BY LRS AND OTHERS vs. PADMA SHETTY (DECEASED) BY LRS AND OTHERS reported in 2007 (3) KCCR 2107 (DB) can be looked up. Hence, when evidence of P.W-5 is read in its entirety, it 79 would clearly disclose that he was the Sub-Registrar at the undisputed point of time when the document in question was presented for registration and he had received said document, registered the same and he has identified the thumb mark of deceased Smt. Gangabai found on Ex.P-7. He has also identified his signature found on the document as per Ex.P-7(d) to (g). He further states that he has explained the contents of Ex.P-7 to the executant and the attesting witnesses and after they understood the same, they have signed Ex.P-7 before him admitting the contents and he has also affixed his signature. At this juncture, it would be apt to note the contention of Mr. Ashok S. Kinagi, learned counsel appearing for the appellants whereunder he contends that Sub-Registrar ought to have endorsed or made endorsement to the effect that he has explained the contents of Ex.P-7 to the executor, since she was an illiterate lady and on account of such certificate having not been found in the document in question, a 80 presumption has to be drawn that it is surrounded with suspicious circumstances. Though at the first blush, said argument looks attractive, it cannot be accepted for the simple reason that the Karnataka Registration Rules, 1965 would indicate that under Rule 73 certain duties are required to be performed by the Registering Officer and it reads as under:
"73. Duties of the Registering Officer - (i) It shall form no part of the Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document, provided execution is duly admitted; but in case of executants who are unable to read, the document shall be read out and if necessary explained to them. If the document is in a language which they do not understand it must be interpreted to them.
(ii) xxx."
55. A bare reading of sub-rule (i) of Rule 73 would indicate that execution could be duly admitted by the Registering Officer in case of executants who are unable to read the document, the contents of it is to be 81 read out and if necessary explained to them and if the document is in a language which they do not understand, it must be interpreted to them. Nowhere the rule mandates that a certificate is to be appended or enclosed to said document certifying that contents of document is read-out or explained the contents of it or the interpretation of the contents of the document so made to the executant. In the absence of any statutory obligation cast on the Sub-Registrar, it cannot be gainsaid that on account of such non-certification by the Sub-Registrar the document is to be viewed suspiciously. In the absence of any statutory obligation cast on the Registering Officer, he is under no obligation to certify to the said effect in the document. In the light of the evidence of Sub-Registrar itself being available on record, which discloses that he had explained the contents of Ex.P-7 to the executant as well as the attesting witnesses, said document cannot be held that it came into existence in suspicious circumstances. 82
56. In the light of the discussion made herein above, this Court is of the considered view that both the courts have rightly held that Will dated 30.01.1997 - Ex.P-7 was duly executed by deceased Smt. Gangabai and there is no error committed by both Courts in that regard.
57. It is trite law that revenue entries do not confer title in favour of a person over the property. Defendants 2 and 3 have contended that on account of revenue records having been mutated to their names relating to suit property as per Ex.D-4, finding of the Courts below that plaintiff is entitled for relief of permanent injunction is perverse, when examined in the background of evidence tendered by the parties, it emerges that there is no dispute that late Smt.Gangabai is the owner of suit properties and RTC extract for the period 2012-13 relating to Sy.No.1070 came to be 83 marked as Ex.P-21 discloses that an extent of 17 acres 28 guntas is mutated to the name of deceased Smt.Gangabai. Likewise, even in respect of other lands the revenue records were mutated to the name of Smt.Gangabai and on her demise, it has been mutated in the name of present plaintiff. Hence, the contention of defendants has been rightly not accepted by the lower appellate Court.
58. For the reasons aforestated, this Court is of the considered view that substantial questions of law is to be answered in favour of respondent - plaintiff by holding that Will dated 30.01.1997 - Ex.P-7 was duly proved by the plaintiff and the finding recorded by lower appellate Court that plaintiff is in possession of suit properties is just and proper since it has not ignored the documentary evidence placed by the parties namely, revenue entries. Hence, substantial questions of law 84 No.2 and 3 are answered against the appellants and in favour of respondent - plaintiff.
59. This Court places on record the able assistance rendered by the learned counsel appearing for the appellants - Sri Ashok S. Kinagi with his erudite arguments.
For reasons indicated hereinabove, I proceed to pass the following:
ORDER
(i) Second appeal is hereby dismissed by answering the substantial questions of law against the appellants -
defendants-2 and 3 and in favour of respondent/plaintiff.
(ii) Judgment and decree passed by III Additional District Judge, Bijapur in R.A.No.88/2013 dated 16.12.2013 is hereby affirmed.
(iii) Parties to bear their respective costs.
Sd/-
JUDGE swk