Smt. Vedavathi vs Smt. Kamakka on 1 February, 2025

[Cites 30, Cited by 0]

Karnataka High Court

Smt. Vedavathi vs Smt. Kamakka on 1 February, 2025

Bench: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 1ST DAY OF FEBRUARY, 2025        R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

     REGULAR SECOND APPEAL NO.1878/2008 (DEC)

BETWEEN:

1.     SMT. VEDAVATHI
       AGED ABOUT 38 YEARS
       W/O RAJANNA
       D/O ESHWARAPPA
       KUNTEGOWDANAHALLI
       KALLAMBELLA HOBLI
       SIRA TALUK,
       TUMKUR DISTRICT-572 137.

2.     SRI MANJUNATH
       AGED ABOUT 32 YEARS,
       S/O ESHWARAPPA,
       KUNTEGOWDANAHALLI,
       KALLAMBELLA HOBLI
       SIRA TALUK,
       TUMKUR DISTRICT-572 137.           ... APPELLANTS


               (BY SRI L. RAJANNA, ADVOCATE)
AND:

SMT. KAMAKKA
W/O HONNAPPA
SINCE DECEASED BY LRS

1.     SRI. NAGARAJ
       AGED ABOUT 38 YEARS,
                             2



     S/O JAVARAPPA
     KUNTEGOWDANAHALLI VILLAGE
     KALLAMBELLA HOBLI,
     SIRA TALUK,
     TUMKUR DISTRICT.

2.   SMT. KAMALAMMA
     D/O RANGAPPA
     SINCE DECEASED BY HER LRS

2(a) SRI RANGANATHAPPA
     S/O LATE R. RANGAIAH
     AGED ABOUT 59 YEARS

2(b) SARIKA
     D/O RANGANATHAPPA
     AGED ABOUT 19 YEARS

     BOTH ARE RESIDING AT NO.138/3,
     MANJUNATHA RESIDENCY
     HANUMAIAH ROAD,
     (09), BESCOM OFFICE,
     TATANAGAR, BENGALURU,
     KARNATAKA-560092.

     (AMENDED VIDE COURT ORDER DATED 10.02.2023)

3.   SMT. SIDDAMAM
     @ SANNASIDDAMMA
     SINCE DECEASED BY HER LRS.

3(a) SRI. M.J. KAMAIAH
     AGED ABOUT 66 YEARS
     MATANHALLI,
     KUNTEGOWDANAHALLI
     KALLAMBELLA HOBLI,
     SIRA TALUK,
     TUMKUR DISTRICT-572 137.
                               3



4.   SRI. R. MALLEGOWDA
     AGED ABOUT 71 YEARS
     S/O LATE R.RANGASHAMAIAH
     R/AT SANTHEPETE, SIRA TOWN,
     TUMKUR DISTRICT-572 137.                ... RESPONDENTS

         (BY SRI LOKESH K.S., ADVOCATE FOR C/R1;
                     SRI A. SAMPATH &
      SRI N.K.MALLIKARJUN, ADVOCATES FOR R2(a & b);
               VIDE ORDER DATED 17.06.2009,
       NOTICE TO R3(a) AND R4 IS DISPENSED WITH)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 22.07.2008
PASSED IN R.A.NO.305/2007 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-V, TUMKUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE ATED
18.08.2007 PASSED IN O.S.NO.126/2005 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) SIRA.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    13.01.2025 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

CORAM:    HON'BLE MR. JUSTICE H.P.SANDESH

                       CAV JUDGMENT

1. Heard learned counsel appearing for the appellants and learned counsel appearing for caveator-respondent No.1 and learned counsel for respondent No.2(a) and (b). This Court earlier heard the matter and answered only substantial question of law No.(ii) and directed to pay Commissioner fee, since an application is filed under Order 26 Rule 9 and 10A CPC was 4 allowed by answering second substantial question of law and an observation was made that other substantial questions of law will be considered after getting report from the Commissioner. Now, the report of the Commissioner is received and placed on record and therefore, the matter is heard afresh.

2. For the sake of convenience, the parties are referred to as per their original ranking before the Trial Court.

3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration to declare that she is the owner of the schedule properties and sought for possession of the suit schedule properties and grant such other relief's, it is contended that she is the only daughter of her parents namely Doddakamaiah and Puttamma of Kunteggowdanahally Village in Sira Taluk and they had no male issues. It is contended that the plaintiff was given in marriage to one Honnappa of the same Village about 35-40 years back. The marriage was performed by her father at Kuntegowdanahlli Village. The plaintiff's mother died about 20 years back. Since then, the father of the plaintiff used to lead life alone. By that time one Siddamma, wife of Jogappa of the same village and a 5 close contact with him and she used to reside with him by deserting her husband. Later on the defendant who is the daughter of one Siddalingappa, the brother of Doddasiddamma used to come and take shelter with the father of the plaintiff by asserting that her husband by name M.J.Kamaiah of Motaganhalli Village deserted her. With that she began to influence the father of the plaintiff and started to mislead him, taking undue advantage of his smoothness. It is contended that after the death of her mother, the plaintiff used to give frequent visit to her mother's place Balenahalli as her mother had some landed properties and she also used to look after her father i.e., all necessities, till his death. It is also the contention that she used to assist in his agricultural work and she used to stay most of her day's in her father's house.

4. It is contended that the father died on 02.09.1988 and all the death ceremonies were preformed by the plaintiff. After the death of her father Kamaiah, the plaintiff used to look after all the suit properties which are all the ancestral properties of Kamaiah. It is further contended that her father Kamaiah used to look after his daughter plaintiff with most love and affection 6 and he has never parted with his properties in favour of anybody that too ignoring the welfare of the plaintiff and has not given any properties in favour of anybody nor he had allowed anybody to enjoy the same including the defendant. The plaintiff being the legal heir to her father Kamaiah succeeded to the entire suit schedule property as Class I heir and she was in possession and enjoyment of the suit schedule properties. Such being the case, somewhere in the year 1992, the defendant had come and interfered saying that she is entitled for the properties of Kamaiah's the Khatha and pahani has been made out in her favour by the revenue authorities. Thus, there was an occasion for the plaintiff to verify the revenue records and learnt that Khatha and pahani was ordered to be made out in her favour by the revenue authorities and immediately she has obtained copies of the same and filed R.R.T. appeal in No.159/93-94 and the same is pending.

5. It is contended that taking undue advantage of the R.T.C. entries with the active support of her well wishers one Eswarappa of Bukkapatna and others have forcibly dispossessed the plaintiff from the suit property about 2 years back. The 7 plaintiff had convened a panchayath in the village, but all became vain. Thus, the possession of the defendant, if any, is nothing but illegal and unauthorized and she is the plaintiff who become the exclusive owner of all the suit schedule properties who succeeds to the entire suit schedule property as a Class I heir of deceased Kamaiah.

6. The defendant appeared and filed the written statement contending that the allegation made in para 2 of the plaint that plaintiff is the daughter of Dodda Kamaiah and Puttamma is false. The allegation that plaintiff's marriage was performed by Kamaiah, is also false. The allegation that plaintiff's mother died 20 years back and since then her alleged father lived alone are false. The further allegations that one Siddamma wife of Jogappa came in contact with Kamaiah and used to reside with him deserting her husband is also false. The defendant denied the entire allegation made in the plaint including performing of last rituals of the said Kamaiah by the plaintiff. The allegation that the plaintiff made frequent visit to Balenahalli and used to look after her father viz., Kamaiah till his death and after his death, plaintiff used to look after all the suit 8 properties is denied. The defendant in his written statement specifically contended that the properties belonged to Kamaiah. The said Kamaiah fostered the defendant from her childhood as his daughter since he had neither wife nor children. The defendant is a close relative of the said Kamaiah i.e., the maternal grand mother of defendant was the sister of the mother of the said Kamiah. The defendant look after all the agricultural work on the suit schedule properties and the welfare of the said Kamaiah, so, the said Kamaiah had all the natural love and affection over the defendant and wished that the suit schedule properties shall go to the defendant after his death. It is his contention that the said Kamaiah son of Badappa celebrated the marriage of the defendant with one M.J.Kamaiah who is now retired teacher. Both the defendant and her husband looked after the welfare of the said Kamaiah and hence, when he was in sound state of mind executed a registered Will dated 01.01.1975 bequeathing the suit schedule properties belonging to him to the defendant. The Will came into existence on account of death of Kamaiah on 02.09.1988 and as a result, she became the absolute owner of all the suit schedule properties 9 under the registered Will dated 01.01.1975. The said Kamaiah was under the care and protection of the defendant till his death and the suit schedule properties were managed by the defendant. After the death of the testator Kamaiah, the defendant has been in peaceful possession and enjoyment of suit schedule properties as owner. It is the defendant who has performed the obsequies of Kamaiah.

7. The allegation made in the plaint that she was dispossessed about 2 years back and panchayath was convened are all false and that the plaintiff is the exclusive owner of the suit schedule properties is denied. It is contended that the plaintiff is not entitled for any relief of declaration of title and possession and also the plaintiff had got issued a legal notice dated 25.09.1992 to the defendant claiming partition. The defendant replied to the same on 15.10.1992 stating that Kamaiah had executed the registered Will dated 01.01.1975 and that the suit schedule properties have vested with the defendant.

8. The Trial Court having considered the pleadings of the plaintiff and defendant and framed the following issues: 10

(i) Whether the plaintiff proves that she is the daughter of Kamaiah?

(ii) Whether the plaintiff prove that she is the owner of the suit schedule properties?

(iii) Whether the defendant prove that Kamaiah executed registered Will dated 01.01.1975 in her favour bequeathing all the suit schedule properties to her?

     (iv)    Whether     the    plaintiff   is   entitled   to   the
             declaration that she is the owner of the suit
             schedule properties?

     (v)     Whether the plaintiff is entitled to possession
             of   the   suit   schedule     properties   from    the
             defendant?

     (vi)    Whether the plaintiff is entitled to mesne
             profits? If so at what rate?

     (vii) What order or decree?

9. The plaintiff on her behalf examined her legal heir plaintiff No.1 as PW1 and also examined 3 witnesses PW2 to PW4 and got marked documents Ex.P1 to Ex.P32. On behalf of the defendants, defendant No.1 is examined as DW1 and 11 examined 5 witnesses as DW2 to DW6 and got marked documents Ex.D1 to Ex.D41.

10. The Trial Court having considered both oral and documentary evidence, answered issued No.1 by coming to the conclusion that the plaintiff is the daughter of deceased Kamaiah and also answered the additional issue No.1 in the affirmative by coming to the conclusion that defendant No.2 proves that his mother Kamakka purchased Item No.2 of the suit schedule properties under a registered sale deed dated 18.10.1960. The Trial Court answered issue No.2 partly in the affirmative in to the conclusion that the plaintiff is the absolute owner of the property i.e., item No.1 excluding item No.2. The Trial Court having considered both oral and documentary evidence answered issue No.3 in the negative in coming to the conclusion that defendant fails to prove that Kamaiah executed registered Will dated 01.01.1975 in her favour bequeathing all the suit schedule properties to her and consequently, granted the relief of declaration partly in favour of the plaintiff and so also plaintiff is entitled for possession of the suit schedule properties from the defendant, answering issue No.5. Hence, granted the decree in 12 favour of the plaintiff and ordered to file separate petition to determine the mesne profits by answering issue No.6.

11. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed by the defendant before the appellate court in R.A.No.305/2007. In the said appeal, it is contended that the Trial Court committed an error in not appreciating the material evidence available on record and also failed to examine whether the suit is filed within the period of limitation or not and proceeded to pass an erroneous order. The Trial Court fails to take note of the fact that admittedly, the suit was filed on 13.03.1996. It is also alleged that panchayat was arranged and two years back she was dispossessed and hence, she filed the suit claiming that she was dispossessed ought to have filed the suit within a period of six months from the date of forcible dispossession by Smt.Siddamma under Section 6(2)(a) of the Specific Relief Act.

12. It is also contended that the suit was filed belatedly and the Trial Court committed an error in coming to the conclusion that although there was a ration card, in earlier days, the rich people were not taking the ration card and it was not 13 compulsory at that time. Generally, in olden times, the marriage of the girls would be celebrated in their young age. Hence, the name of the plaintiff would not enter even in the voter's list with her father and the said observation is erroneous eventhough, no documents with evidence are available to prove that plaintiff is the daughter of deceased Kamaiah. In the absence of documentary evidence, the finding of the Trial Court is erroneous and it requires interference.

13. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the following point for consideration:

       i)    Whether the appellants being the LRs of
             defendant No.1     have   made   out just and

sufficient ground to allow I.A.No.2 under Order 41 Rule 27 CPC seeking permission to adduce additional evidence as prayed for?

ii) Whether the appellants being the defendant Nos.3 and 4 have made out just and sufficient ground to allow I.a.No.3 under Order 26 Rule 9 of CPC for appointing a Commissioner?

iii) Whether defendants 3 and 4 - appellants proved that judgment and decree under appeal 14 is perverse and bad in law and as such, same is liable to be set aside.

14. The First Appellate Court answered point No.1 in the affirmative against respondent Nos.1 and 2 opponents. The appellate court also answered point No.2 in the negative in respect of an application filed under Order 26 Rule 9 of CPC and answered the other point for consideration in the negative and the finding is not perverse and dismissed the appeal in coming to the conclusion that there is no perversity in the finding of the Trial Court in accepting the plaintiff as the daughter of Kamaiah and disbelieved the case of the defendant that there was a Will. Being aggrieved by the judgment and decree of the Trial Court and also the First Appellate Court, the present Regular Second Appeal is filed before this court.

15. This court having taken note of the grounds urged in the second appeal formulated the following substantial questions of law:

i) Whether the courts below have committed perversity in the manner of consideration of the evidence available on record with regard to the proof of the document at Ex.D1 dated 15 01.01.1975 and in that regard whether the reasons stated by the courts below would constitute suspicious circumstance as enumerated and decided by several decisions?

ii) Whether the Lower Appellate court being the final court to render finding of fact could have rejected the application filed under Order 26 Rule 9 and 10A of CPC based on the reasoning assigned by it, when the parties in a normal circumstance can be provided an opportunity of tendering such evidence for arriving at a finding of fact even before the lower appellate court?

iii) Whether the courts below have committed perversity in the manner of appreciation of evidence with regard to contention regarding the plaintiff being the daughter of late Kamaiah?

16. This Court having already answered substantial question of law No.(ii) and now since the report of the Commissioner is received, only substantial questions of law No.(i) and (iii) arise for consideration of this Court as referred in 16 paragraph No.15 of this judgment in view of subsequent development and the report of the Commissioner is filed.

17. Having considered substantial questions of law No.(i) and (iii) and also the contention of the learned counsel for the appellants and also learned counsel appearing for caveator- respondent No.1 and learned counsel for respondent No.2(a) and

(b) and also the grounds urged before this Court after having received report of the Commissioner, learned counsel for the appellants would vehemently contend that now the report is received and the appellants have not filed any objections to the report of the Commissioner. But, learned counsel appearing for the legal representatives of respondent No.1 has filed objections to the FSL report and seeks an opportunity to cross examine the commissioner.

18. Learned counsel appearing for the appellants would vehemently contend that in respect of the recitals of the Will is concerned, no issues are framed. The very executant of the Will himself stated that he has no issues, hence question of claiming that the plaintiff is the daughter of the executant cannot be accepted and the Trial Court committed an error in coming to 17 the conclusion that plaintiff is the daughter of executant. Learned counsel would vehemently contend that legal notice was issued in the year 1992 before filing the suit and reply was given, wherein it is specifically pleaded that executant executed Will in favour of the defendants. Learned counsel would vehemently contend that in the suit nothing is pleaded with regard to validity of the Will and now, the plaintiff cannot contend that the Will is created.

19. Learned counsel would vehemently contend that notice was given on 25.09.1992 and reply was given on 15.10.1992, wherein specific defence is set out that Will was executed. But, not averred anything in the plaint that it is created or came into existence under suspicious circumstances. It is also contended that the suit was filed on 13.03.1996 after four years of issuance of legal notice and not questioned the Will for a period of four years, even though specific pleading was made that Will is in existence. It is contended that executant died after 13 years of execution of the registered Will in the year 1975 and the said Will was not disputed in the plaint and contend that written statement was filed on 22.08.1996. The Will 18 was propounded in the reply notice itself and the same was not disputed and even after filing of the written statement, not disputed the Will and not challenged the Will throughout. It is further contended that there is no pleading regarding invalidity of the Will. But, the Trial Court committed an error in referring paragraph No.45 that Will is disputed and in the absence of such dispute and also any material, the said reasoning is not correct.

20. Learned counsel would vehemently contend that Will is not surrounded with any suspicious circumstances. It is contended that P.W.1 was aged about 5 years on the date of the Will. The witnesses, who were examined before the Court also speak about Ex.P2 and not Ex.D1 and they also speak about the Will of the year 1997 Will and not 1975. Learned counsel would contend that P.W.3 is residing more than 10 kms. away from the plaintiff and so also P.W.4 is residing about 15 kms away from plaintiff. The finding given is also in respect of the Will dated 05.05.1997 and no finding is given in respect of the Will of the year 1975. Learned counsel would contend that evidence of P.Ws.1 to 4 cannot be relied upon, since there is no pleading and no value can be attached to their evidence. It is contended that 19 in the cross-examination of D.W.1, nothing is elicited and D.W.2 is an attesting witness and father of the appellants, who speaks about attestation. The evidence of D.W.3 is also very clear regarding Will is concerned and nothing is elicited.

21. Learned counsel also relied upon the judgment of the Apex Court in PPK GOPALAN NAMBIAR VS. PPK BALAKRISHNAN NAMBIAR AND OTHERS reported in AIR 1995 SC 1852 and relies upon head note (B), wherein discussion is made with regard to validity of the Will and discrepancy in evidence of attestor would not vitiate validity of a registered Will which was duly endorsed by Registrar, whole of estate given to son in exclusion of daughter, not itself sufficient to generate suspicion and the Will executed and registered 8 years prior to death of testator, no evidence or statement made regarding invalidity of Will in pleadings. Nothing was stated with regard to alleged pressure brought on executor of Will, suspicion raised regarding validity of Will is without any basis. Learned counsel referring this judgment would contend that testator passed away after 13 years of execution of the Will and with regard to invalidity of the Will is concerned, nothing is pleaded. 20

22. Learned counsel also relied upon judgment in SAVITHRI AND OTHERS VS. KARTHYAYANI AMMA AND OTHERS reported in ILR 2008 KAR 2485 (SC). Learned counsel referring this judgment would vehemently contend that in this judgment also, the Apex Court discussed that when the Will was registered and not cancelled, though testator lived for 7 years after its execution, fact by itself is sufficient to uphold the Will.

23. Learned counsel also in support of his argument would contend that the FSL report is very clear with regard to the document of Ex.D1 and Ex.D37 bears the signature of the testator and the Will is also registered and minor discrepancies will not take away the case and it will not affect the case of the defendants, since Will is registered and executed in the year 1975 and he died after 13 years.

24. Learned counsel with regard to substantial question of law No.(iii) is concerned with regard to the parentage would contend that the Trial Court and the Appellate Court failed to consider the material on record. The defendants denied the very relationship between the plaintiff and the testator of the 21 document. Learned counsel with regard to the parentage is concerned would contend that no genealogy is pleaded and produced and no documentary evidence is produced before the Trial Court and only an oral evidence is adduced before the Court and paragraph No.14 of the judgment of the Trial Court is erroneous. The Trial Court failed to take note of deposition of P.W.1 and the Trial Court taken note that Exs.P29 and 30 cannot be believed. Learned counsel also would vehemently contend that in the very same documents, the very age and house number are different. Ex.P1 is the death certificate of plaintiff and the Trial Court committed an error in accepting the oral evidence without any documentary evidence regarding parentage is concerned.

25. Learned counsel relied upon the judgment reported in 2014 AIR SCW 155 and brought to notice of this Court paragraph No.21, wherein a discussion was made that the appellants/defendants have not produced any record with regard to the property stands in their name and also made an observation that High Court rightly answered in favour of the defendants in the 'affirmative' for the reason the Courts below 22 without considering the denial made by the defendant No.1 with regard to the ownership claim made by the appellants/defendants in respect of the suit schedule property have come to the erroneous conclusion that there is no pleading of fact by the defendants/respondents and lack of evidence available in favour of the plaintiff to prove the title to the suit schedule property. Learned counsel would vehemently contend that the finding reached by both the Trial Court and the First Appellate Court is perverse and liable to be interfered with in second appeal. Learned counsel referring this judgment would also vehemently contend that when there is no specific pleading with regard to the validity of the document of Will is concerned, the finding that Will has not been proved is erroneous.

26. Learned counsel for the appellants would further contend that when the material does not disclose anything about the fact that the plaintiff is the daughter executant, both the Courts ought not to have come to a conclusion that she is the daughter. Learned counsel would vehemently contend that, in the absence of documentary proof regarding her parentage is concerned, the Trial Court committed an error in answering issue 23 No.1 and the First Appellate Court committed an error in coming to the conclusion that plaintiff has established that she is the daughter of the executant and hence, it requires interference by setting aside the order.

27. The learned counsel for the appellants, in support of his arguments, relied upon the judgment in S BASAPPA AND OTHERS VS GANGAMMA AND OTHERS reported in AIR 2022 KARNATAKA 126, wherein discussion was made regarding proof of relationship under Section 50 of the Evidence Act, 1872 with regard to the fact that the suit for declaration by adopted son, adopted son claiming to be in joint possession of suit properties during lifetime of adopting father and after his father's death, he continues to be in possession, adopted son did not adduce evidence of any credible person to establish his relationship, no oral evidence to prove adoption and in absence of proof of adoption refusal to grant declaration held that the same is proper. In paragraph 15, it is held that reliance placed upon the voters' list cannot also be of any consequence, since an entry in the voter's list that he was the son of Savandaiah cannot establish the adoption.

28. The learned counsel also relied upon the judgment in INAMDAR (DEAD BY L.RS.) AND ANOTHER VS AMEERSAHEB AND OTHERS reported in 1995 (1) KAR L J 663, wherein it is held that birth and death extracts, document to be used only to prove the date of birth or death of a particular person mentioned in the extract in order to establish that the said entry relates to a particular person. Evidence is necessary. Paternity of a person cannot be determined on the basis of mere entries in the extract. Party concerned to lead some other evidence to prove that a particular person was born to a particular man when that point is in issue in the case and relied upon paragraph 13 of the said judgment.

29. The learned counsel also relied upon the judgment in BASAYYA AND OTHERS VS MADOLAYYA AND OTHERS reported in 1982(2) KAR L J 485, wherein also discussed Section 50 of the Evidence Act, 1872 with regard to the proof of preferential heirship is concerned which does not make evidence of mere general reputation (without conduct) admissible as proof of relationship, and the conduct must be of the person who fulfils 25 the essential conditions of Section 50 and relied upon paragraphs 4 to 14 of the said judgment.

30. The learned counsel also relied upon the judgment in KARIAPPA VS N JAYAMMA AND OTEHRS reported in 1966 (1) MYS L J 235, wherein also discussed Section 50 of the Evidence Act with regard to relationship, opinion evidence as to relevancy is concerned and held that it is necessary that the opinion must be expressed by conduct as to the existence of such relationship and the person whose opinion is expressed by conduct must be a person who has special means of knowledge on the particular subject of relationship. Evidence of general reputation is not admissible as evidence of relationship and referred pages 238, 240 and 242 in support of his arguments.

31. The learned counsel also relied upon the judgment in DOLGOBINDA PARICHA VS NIMAI CHARAN MISRA AND OTHERS reported in AIR 1959 SC 914, wherein also discussed Sections 50 and 60 of the Evidence Act and regarding opinion evidencing the relationship, scope and applicability of Section 50 is indicated, opinion as expressed by conduct, nature of proof is stated and relied upon paragraphs 6, 7 and 24 of the said 26 judgment. The learned counsel for the appellants relying upon these judgments would vehemently contend that the relationship of the plaintiff that she is the daughter of the executant has not been established. Hence, Section 50 of the Evidence Act, 1872 is not complied.

32. Learned counsel for the appellants also relied upon the judgment in ALAMELU AMMAL AND ANOTHER VS. S. RANI AND OTHERS reported in AIR 2017 SC 2612 and contend that allowing the application by Appellate Court under Order 41 Rule 28 is necessary to be followed and document should have been proved and passing of decree by Appellate Court simply by acting upon document, without following procedure is erroneous.

33. Learned counsel also relied upon the judgment in SARADA (SMT) AND OTHERS VS. MANILLOTH KOMBRA RAJENDRAN reported in (1996) 8 SCC 345, wherein also an observation is made that Appellate Court ought to have received the agreement as additional evidence and considered the effect thereof by either recording the evidence of the parties or calling 27 a finding in this behalf from the Trial Court and relied upon paragraph No.5 of the Trial Court.

34. The counsel also relied upon the judgment in SUGAPPA AND ANOTHER VS. SHIVASHANKERAPPA AND OTHERS reported in 2015 (4) KCCR 3499 with regard to Order 41 Rule 27 is concerned, wherein it is held that if the appellate Court intends to dismiss the said application, it has to pronounce the judgment on merits. If the appellate Court intends to allow the application, then it has to allow the application and permit the concerned parties to lead additional evidence and defer the decision on merits.

35. The counsel also relied upon the judgment in SHANTHAVEERAPPA VS. K.N. JANARDHANACHARI reported in 2007 (3) KCCR SN 159 and contend that, if additional evidence is allowed to be produced by appellate Court, either itself can take such evidence or direct Trial Court to take it and to send it to appellate Court. Learned counsel referring this judgment would vehemently contend that the Appellate Court committed an error in passing such a judgment.

36. Learned counsel for the appellants also in his argument would vehemently contend that the Apex Court in the judgment with regard to proving of the Will is concerned, given certain guidelines in the judgment in CIVIL APPEAL NO.3351 OF 2014 dated 21.09.2023. The counsel brought to notice of this Court paragraph Nos.10(ii), (iii), (vi), (x) and (xi) and also paragraph Nos.12 to 16. Learned counsel referring this judgment brought to notice of this Court that it is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

37. In paragraph No.10(iii) of the said judgment, it is held that a Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:

"(a) 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 the said signature or affixation shall show that it was intended to give effect to the writing as a Will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have 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 acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required."

38. In paragraph No.10(vi) of the said judgment, it is observed that if one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with and in paragraph No.10(x), it is observed that one who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. In paragraph No.10(xi), it is observed that suspicious circumstances must be 'real, germane and valid' and not merely 30 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.

39. Learned counsel also brought to notice of this Court paragraph Nos.12 to 14 of the said judgment, wherein discussion was made in paragraph No.12 that a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was examined as PW2 by the Civil Court. This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other.

40. Learned counsel for the appellants also relied upon the judgment in CIVIL APPEAL NO(S) 13192 OF 2024 dated 02.01.2025. Learned counsel referring this judgment would vehemently contend that detail discussion was made that requisites of proving of a Will are well established and discussion was made with regard to judgment of the Apex Court in MEENA PRADHAN AND OTHERS VS. KAMLA PRADHAN AND ANOTHER reported in (2023) 9 SCC 734 and also the judgment of the Apex Court in SHIVAKUMAR AND OTHERS VS. SHARANABASAPPA AND OTHERS reported in (2021) 11 SCC 277 and principles summarized therein are also taken note of and in paragraph No.13, discussed with regard to Section 63(c) of the Succession Act i.e., the language of Section 63(c) of the Act uses the word 'OR'. It states that each Will shall be attested by two or more witnesses who have seen the Testator sign or affix his mark on the Will OR has seen some other persons sign the Will in the presence and by the direction of the Testator OR has received a personal acknowledgment from the Testator of his signature or mark etc. What flows therefrom is that the witnesses who have attested the Will ought to have 32 seen the Testator sign or attest his mark OR have seen some other persons sign the Will in the presence of and on the direction of the Testator. In paragraph No.14 of the judgment, it is observed that the testimony of DW-1 is clear that he had seen the deceased affix his mark on the Will. That alone would ensure compliance of Section 63(c). The part of the Section that employs the term 'direction' would come into play only when the attestor to the Will would have to see some other person signing the Will. Such signing would explicitly have to be in the presence and upon the direction of the Testator and set aside the judgment of the High Court and restored the judgment of the First Appellate Court that Will is valid.

41. Learned counsel referring this judgment would vehemently contend that the very execution of Will has been proved by examining the witnesses and the document was executed in the year 1975 and the executant died in the year 1988 after 13 years and the evidence of witnesses examined by the plaintiff herself categorically says that till his death, he was having sound state of mind and the witnesses also say that on the direction of the testator itself, signed the document and in 33 their presence, affixed the signature and executant also signed the Will in their presence. Hence, both the Courts ought not to have disbelieved the document of Ex.D1.

42. Learned counsel for the appellants would vehemently contend that this Court while dealing with substantial question of law No.(ii) held that the scientific expert opinion is necessary and sent the document of Will to the handwriting expert and the report available before this Court is that signature belongs to the executant. Under the circumstances, the matter requires to be reviewed regarding both question of fact and substantial question of law, since both the Courts have committed an error in appreciating the same and given the finding as against the material available on record and finding of Trial Court and the First Appellate Court is perverse.

43. Per contra, learned counsel appearing for caveator- respondent No.1 in his argument would vehemently contend that the Trial Court and the First Appellate Court have given finding with regard to the factual aspects is concerned and in the second appeal, this Court cannot consider the evidence once again and this Court has to consider only the substantial questions of law 34 and when the finding was given that plaintiff was the daughter of executant, whether Kamakka is daughter of Kamaiah does not arise, though contend that Will is executed and the said Will is disputed. Learned counsel would vehemently contend that when the plaintiff examined two witnesses as P.Ws.2 and 3, they were aged about 60 years and 70 years respectively and they were having knowledge about the relationship between the executant and the plaintiff and nothing is elicited from P.Ws.1 to 3. It is also contended that P.W.4, who is examined before the Trial Court was aged about 80 years and his evidence is also credible. Learned counsel would contend that P.W.5 also admits that plaintiff is daughter of Kamaiah and P.W.6 is also witness to the Will and admits that plaintiff is daughter of executant. The counsel would vehemently contend that Trial Court in detail discussed in paragraph No.15 of the judgment and both the Courts accepted the contention of the plaintiff. Though the defendants examined the witnesses to prove the Will dated 01.01.1975, the evidence of D.W.2-attesting witness is not trustworthy. It is evident that stamp paper was purchased earlier and the document was registered on 06.01.1975 and not on the 35 date of execution of document i.e., on 01.01.1975 and witnesses speak about the fact that document was registered on the same day, but the same is contrary to the document available on record.

44. Learned counsel would vehemently contend that evidence of D.W.2 cannot be relied upon, since the children are beneficiaries of the Will and D.W.2 says that testator Narasimhaiah has not signed the Will in his presence, but D.W.2 claims that his signature is taken in the Village. The evidence of D.W.3 is contrary to other witnesses and he also says that registration of the document was done on the very same day and he is a Village Accountant. It is contended that there is an inconsistency in the evidence available on record and the same is taken note of by the Trial Court and the First Appellate Court and the name of Narasimhaiah was not found in Sl.No.2 and there was an insertion. Learned counsel would vehemently contend that since the Will was not proved, both the Courts have given a concurrent finding. The counsel would further contend that the evidence of D.Ws.5 and 6 is not disputed and they deposed that plaintiff is the daughter of executant and contend 36 that when there is no perversity and the Will has not been proved and none of the witnesses depose that they were present on 06.01.1975, both the Courts rightly not accepted the case of the defendants. Learned counsel would vehemently contend that disinheriting the daughter is one of the suspicious circumstance and none of the witness deny that plaintiff is not the daughter and evidence of P.Ws.1 to 4 is in conformity with Section 50 of the Evidence Act. The defendants not denied throughout that plaintiff is not the daughter of Kamaiah and except stating that I do not know, there is no specific denial.

45. Learned counsel for the caveator-respondent No.1 in support of his argument relied upon the judgment in DOLOBINDA PARICHA VS. NIMAI CHARAN MISRA AND OTHERS reported in 1959 SUPP (2) SCR 814 and brought to notice of this paragraph No.6, wherein discussion was made regarding Section 50 of the Evidence Act "Of the Relevancy of Facts" - i.e., "50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of 37 such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact."

46. It is further observed that on a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. It is further discussed in detail that if the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. In paragraph No.7 of the said judgment, the Apex Court also discussed with regard to it is necessary to state here 38 that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of Section 50 is to be proved is not stated in the section.

47. Learned counsel also relied upon the judgment in JAGDISH CHAND SHARMA VS. NARAIN SINGH SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2015) 8 SCC 615, wherein discussion was made with regard to Section 71 of the Evidence Act, 1872 and held that Section 71 cannot be invoked as substitute to mandatory requirements of Section 68 of Evidence Act r/w. Section 63(c) of Succession Act, execution of Will cannot be sought to be proved by other evidence under Section 71 on failure of attesting witness to prove by credible evidence execution and attestation as required under Section 68 of Evidence Act r/w. Section 63(c) of Succession Act and Section 63(c) is mandatory and failure or deficiency in compliance would invalidate document.

48. Learned counsel also relied upon the judgment in CIVIL APPEAL NO.9683 OF 2019 in RAJ KUMARI AND OTHERS VS. SURINDER PAL SHARMA delivered on 17.12.2019, wherein also discussion was made with regard to 39 Section 63 of Indian Succession Court and the same is extracted and also discussed Sections 68 and 71 of the Evidence Act, wherein also earlier judgment of the Apex Court i.e., JAGDISH CHAND SHARMA's case was discussed and in paragraph No.28, it is observed that even if we are to accept signatures of the testator and the witnesses, we cannot ignore "other evidence"

that Suhagwanti and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which Surinder Pal Sharma, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed.

49. Learned counsel also relied upon the judgment in SHARMA ENTERPRISES VS. HOTEL LEELA VENTURE LTD. reported in 2009 SCC ONLINE DEL 844. Learned counsel referring this judgment would contend that the Delhi High Court also taken note of Order 13 Rule 4 and Order VIII and Section 34 i.e., failure to exhibit make an endorsement on a document of an exhibit mark under Orde4r 13 Rule 4 of the Code of Civil Procedure, whether it preclude the consideration of the 40 document, if the evidence has already been led about that document and in the absence of verification of written statement of the defendant, by a duly authorized person, consequences, grant of interest pendant lite is relevant consideration and held that absence of an exhibit mark on a document will not preclude the Court from considering the said document if evidence in respect of the proof of the document has been led.

50. Learned counsel also relied upon the judgment in S. SUBRAMANIAN VS. S. RAMASAMY AND OTHERS reported in (2019) 6 SCC 46 and brought to notice of this Court relevant paragraph Nos.7.3 to 7.7, wherein it is held that while deciding the second appeal under Section 100 CPC, the High Court is not required to re-appreciate the entire evidence on record.

51. Learned counsel also relied upon the judgment in NAVANEETHAMMAL VS. ARJUNA CHETTY reported in (1996) 6 SCC 166 and brought to notice of this Court paragraph Nos.11 and 21, wherein the Apex Court held that under Section 100 CPC, the High Court cannot re-appreciate the evidence.

52. Learned counsel also relied upon the judgment in KONDIBA DAGADU KADAM VS. SAVITRIBAI SOPAN GUJAR 41 AND OTHERS reported in (1999) 3 SCC 722 and brought to notice of this Court paragraph Nos.3 to 5 that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court and concurrent finding however erroneous cannot be disturbed under Section 100 CPC.

53. Learned counsel also relied upon the judgment in DOLGOBINDA PARICHA VS. NIMAI CHARAN MISRA AND OTHERS reported in AIR 1959 SC 914 and brought to notice of this Court paragraph Nos.7 to 15, wherein discussion was made with regard to Section 50 of the Evidence Act.

54. Learned counsel also relied upon the judgment in BHARPUR SINGH AND OTHERS VS. SHAMSHER SINGH reported in (2009) 3 SCC 687 and brought to notice of this Court paragraph Nos.22 and 23, wherein discussed that propounder should remove all suspicious circumstances shrouding the making of the Will by cogent and convincing explanation and listed out the suspicious circumstances surrounded in execution of the Will.

55. Learned counsel also relied upon the judgment in SMT. JASWANT KAUR VS. SMT. AMRIT KAUR AND OTHERS reported in (1977) 1 SCC 369 and brought to notice of this Court paragraph Nos.13, 17, 18, 19 and 21, wherein listed out the various circumstances that act as suspicious circumstances and also inter alia observed that Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, 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.

56. Learned counsel also relied upon the judgment in JANKI NARAYAN BHOIR VS. NARAYAN NAMDEO KADAM reported in (2003) 2 SCC 91. Learned counsel referring this judgment brought to notice of this Court paragraph Nos.7, 8, 11 and 14, wherein discussion was made that Section 71-"Proof when attesting witness denies the execution" can be taken only when the attesting witness denies or does not recollect the execution of the document and High Court cannot reverse the 43 judgment of the First Appellate Court on finding of fact in the absence of any substantial question of law.

57. Learned counsel also relied upon the judgment in CHENNADI JALAPATHI REDDY VS. BADDAM PRATAPA REDDY (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER reported in (2019) 14 SCC 220 and brought to notice of this Court paragraph Nos.10, 11, 12, 13, wherein at paragraph No.10, it is held that it is well settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it.

58. Learned counsel also relied upon the judgment in SHASHI KUMAR BANERJEE AND OTHERS VS. SUBODH KUMAR BANERJEE SINCE DECEASED AND AFTER HIM HIS LEGAL REPRESENTATIVES AND OTHERS reported in 1963 SCC ONLINE SC 114 and brought to notice of this Court paragraph Nos.22 and 24 and in paragraph No.22, it is held that 44 besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the expert's opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it.

59. Learned counsel for the caveator-respondent No.1 referring these judgments would vehemently contend that when both the Courts have appreciated the material in proper perspective and there is no perversity and even if the finding is erroneous, the same cannot be reversed in second appeal and both the Courts have listed out the suspicious circumstances while not accepting the document of Ex.D1.

60. Learned counsel for the appellants, in reply to the arguments of the learned counsel for the caveator-respondent No.1 would contend that the recitals in the Will itself is very clear that the registered document of Will was executed 13 years back, wherein the executant himself has categorically stated that 45 he has no issues. The counsel would vehemently contend that though the defendants rely upon second Will dated 05.05.1997, the same came into existence in suspicious circumstances. The counsel would vehemently contend that no value can be attached to the evidence of P.Ws.1 to 4, since there is no pleading with regard to the Will is concerned. In the cross- examination of D.Ws.1 and 2, nothing is elicited, as they are attesting witnesses and evidence of D.W.3 is very clear regarding attestation is concerned and also relied upon the judgment of the Apex Court in PPK GOPALAN NAMBIAR's case reported in AIR 1995 SC 1852 and after 13 years of execution of the document, the testator has passed away and with regard to the invalidity of the Will, there is no pleading and FSL report is not disputed and also other judgment of SAVITHRI case referred supra aptly applicable. Learned counsel also would contend that in respect of substantial questions of law regarding parentage is concerned, no document is placed, except oral evidence. Exs.P29 and 30 cannot considered as they pertain to executant and his wife. Hence, it requires interference. 46

61. Having heard learned counsel for the appellants and learned counsel for the respondents and also the principles laid down in the judgments referred supra, this Court has to analyze the material on record, in view of the substantial questions of law framed by this Court at the time of admitting the second appeal. Before considering the substantial questions of law, this Court would like to make it clear that this Court has framed substantial question of law No.(ii)-whether the Lower Appellate court being the final court to render finding of fact could have rejected the application filed under Order 26 Rule 9 and 10A of CPC based on the reasoning assigned by it, when the parties in a normal circumstance can be provided an opportunity of tendering such evidence for arriving at a finding of fact even before the lower appellate Court and the same has been answered by this Court dealing with the matter after hearing the arguments on main and only dealt with substantial question of law No.(ii) and answered the same as 'affirmative' and referred the document of Ex.D1-Will and other admitted documents to handwriting expert and handwriting expert has given the report 47 that the signature available in Ex.D1 belongs to executant considering the other admitted documents.

62. It has to be noted that the appellants have not filed any objections, but the caveator-respondent No.1 has filed objections to the Commissioner report. In the objections at paragraph No.19, it is stated that cross-examination of the handwriting expert is required. Having taken note of the report and the objections, this Court has to consider whether an opportunity has to be afforded to cross-examine the Commissioner. But, it has to be noted that the respondents disputed the signature available in Ex.D1 and other document is not disputed and it is the claim of the appellants that Will was executed long back in the year 1975 and the executant passed away in the year 1988 after 13 years and also other document is sent along with Ex.D1. The respondents also not dispute the same. When such being the case and admitted documents and disputed document of Ex.D1 were sent to handwriting expert, now cannot seek for an opportunity to cross-examine the witness and handwriting opinion is only whether the signature available on Ex.D1 and other admitted document is one and the 48 same and scientific report given is also one and the same. Hence, question of giving an opportunity does not arise.

63. Now, this Court would like to consider other two substantial questions of law which were not answered earlier and remains for consideration i.e., substantial questions of law Nos.(i) and (iii).

64. The substantial question of law No.(i) framed by this Court is Whether the courts below have committed perversity in the manner of consideration of the evidence available on record with regard to the proof of the document at Ex.D1 dated 01.01.1975 and in that regard whether the reasons stated by the courts below would constitute suspicious circumstance as enumerated and decided by several decisions. Having taken note of substantial question of law No.(i) is concerned, now the scope of this Court is whether both the Courts have committed perversity in the manner of considering the evidence with regard to proof of document of Ex.D1 and also whether the reasons given by the Courts below constitutes suspicious circumstances. In this regard, the Court has to consider the material on record. In order to answer the substantial question of law, whether the 49 order of both the Trial Court and the First Appellate Court suffers from its perversity. Hence, this Court again look into the evidence on record whether both the Courts committed an error, particularly any perversity taking note of the document of Ex.D1 i.e., dated 01.01.1975 with regard to proving of the document. This Court would like to consider the document of Ex.D1 on which basis the appellants claim that the suit schedule properties are bequeathed in favour of the appellants. It is not in dispute that the document of Ex.D1 was registered in the year 1975 and the executant passed away in the year 1988 after lapse of 13 years. It is also important to note that the defendants examined witnesses to prove the same. D.W.1 in her evidence says that executant had executed the Will in favour of Siddamma since executant had no wife and children. The above said Kamaiah executed the Will on 01.01.1975 bequeathing all the suit schedule properties which are his own properties in favour of the beneficiaries and Will came into operation subsequent to his death. It is also her evidence that she has taken care of Kamaiah during his life time and during his death, she has performed his obsequious, who died in her house only and 50 plaintiff never performed funeral ceremony of Kamaiah and the suit schedule properties were enjoyed by her and Kamaiah individually. It is contended that plaintiff is nowhere related to said Kamaiah as well as the suit schedule properties and she cannot succeed to the estate of deceased kamaiah. In support of her contention, also produced documents of Exs.D1 to D36.

65. The dispute before the Court is with regard to appreciation of evidence by Trial Court as well as the appellate Court in order to exercise the jurisdiction of second appeal. I have already pointed out that the Trial Court comes to the conclusion that Ex.D1 was not proved but this Court while considering the substantial question of law No.(ii) allowed the I.A for sending the document for handwriting expert and opinion is also received wherein the handwriting expert says that the signature found in Ex.D1 and Ex.D37 are one and the same and hence it is clear that the signature available in Ex.D1 -Will is belongs to the executant. Now, only question before this Court is whether the said executant had executed the Will -Ex.D1 with sound state of mind and any reasons are assigned in the Will in favour of the defendant No.1 and whether it comes in the 51 purview of suspicious circumstances. This Court would like to rely upon recent judgment of the Apex Court relied upon by the appellant's counsel MEENA PRADHAN AND OTHERS VS. KAMLA PRADHAN AND ANOTHER referred supra and also extracted the observation made in paragraph N.10 which does not requires mathematical accuracy but the test of satisfaction of the prudent mind has to be applied fulfill all the formalities required under section 63 that testator shall sign or affixes his mark to the Will or it shall be signed by some other person by his direction and also mandatory to attest the document and only in the presence of the executant witnesses must have seen the testator signature. It is also important to note that attesting witnesses speak not only about the testator signature but also each of the witnesses had signed the Will in the presence of the testator and if one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with. It is also important to note that in paragraph No.10(ii) in the judgment also held with regard to if there are any circumstances giving rise to doubt then it becomes duty of the propounder to dispense such suspicious circumstances. The 52 suspicious circumstances must be real, germane and valid and not merely the fantasy of the doubting mind. Whether a particular future would qualify as suspicious would depend on the facts and circumstances of each case. It is also observed that any circumstances raising suspicion legitimate in nature would qualify as suspicious circumstances. For example, a shaky signature, a feeble mind, a unfair and unjust disposition of the property, the propounder himself taking leading part in making of the Will. Hence, this Court has to look into any such circumstances warranted in the case on hand.

66. Before considering the said factual aspects it is necessary to refer the document of Ex.D1 and the same is registered document. The reason assigned by the testator is that he married and his wife left him long back about 45 years ago and not having any issues from the said wedlock and also the beneficiary under the Will is his mother's sister's daughter and he fostered her as his daughter and also performed the marriage with one Sri.M.J.Kamaiah of Matanahalli and she has taken care of his life and also having belief that she would take care of him future also and hence executed the Will and in the Will the 53 details of property is mentioned which he was having during his life time and signature of the executant is marked as Ex.D1(a) and Ex.D1(b) and also the witnesses signature also got marked through the witnesses who have been examined that is DW2 and DW3 and so also the scribe signature is identified by DW4 since he was no more.

67. It is also important to note that document of Ex.D37 is also got marked through defendant No.2 who claims that one of the property was sold to the purchaser in the year 1960 itself that too by the executant and Trial Court also accepted the contention of defendant No.2 that there was a sale deed in respect of Sy.No.76/1 and Sy.No.76/2 and excluded while granting the decree in favour of the plaintiff the said property. It is also not in dispute that the sale deed was executed in the year 1960 in terms of the Ex.D37 and the same is also not seriously disputed by the respondent and Trial Court also accepted the same. This Court sent the document of Ex.D1 and Ex.D37 and signature of executant is also marked as Ex.D37(a) in the said document and both the signatures are compared by the expert and expert has given the scientific report that both 54 the signatures are one and the same. Hence it is clear that the document Ex.D1 contains the signature of the deceased executant and now Court has to consider whether the document came in a suspicious circumstances as held by the Apex Court in the judgment referred supra. Any circumstances raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature and signature in between 1960 as well as 1975 is analyzed by the scientific expert and comes to the conclusion that both signatures are one and the same and also with regard to the feeble mind is concerned, the very witnesses of plaintiff PW2 and PW3 categorically admitted that till the death he was having sound state of mind and those witnesses are examined by the plaintiff.

68. It is also important to note that Apex Court also observed that unfair and unjust disposition of property but no doubt all the properties are given in favour of the defendant No.1 but, reason was assigned in the Will itself that his wife left him 45 years ago and also categorically says that he was not having any issues in the said wedlock, but plaintiff claims that she is the daughter of the executant, but no documentary 55 evidence is placed before the Trial Court to prove that she is the daughter of the executant but Trial Court accepted the oral evidence particularly PW2 to PW4 and evidence of DW5 and DW6 who have deposed that she is the daughter.

69. It is also important to note that when the executant himself having sound state of mind as admitted by the plaintiff's witnesses PW2 and PW3, no question of feeble mind and regarding unfair and unjust disposition of property is concerned, the very executant himself stated in the document in the year 1975 itself that he was not having any issues and hence the property was bequeathed in favour of defendant No.1 who had taken care of the executant. It is also important to note that if propounder himself taking leading part in making of the Will, then it will be one of the circumstances, but no such material is found with regard to taking leading part in getting the property, but counsel appearing for the respondent would vehemently contend that a sentence is mentioned that the Will document will come into force after his death and the same is an insertion and having compared the writings found, the writings of all the contents are in the same hand writing, but the signature of the 56 executant found beside the sentence, that will not create any doubt since the hand writing expert given opinion that signature belongs to the executant and also witnesses speaks about the execution of the Will-Ex.D1 that is spoken by DW2 and DW3.

70. The Apex Court also made it clear that each witnesses must say that executant had signed the document in their presence and also they signed the document on the direction of executant and in the evidence of DW2 and DW3, both have categorically deposed before the Court that the said Kamaiah out of natural love and affection executed a registered Will on 01.01.1975 in favour of the defendant bequeathing the suit property as he was care and custody of her. It is also stated that during the life time of Kamaiah the suit properties were managed by both himself and the defendant and was in their peaceful possession and enjoyment, subsequent to the death of Kamaiah, the testator, the defendant continued to be in possession of the same. The plaintiff is a stranger to the suit schedule property.

71. It is also important to note that DW2 categorically says that Kamaiah instructed M.Lingappa to prepare the 57 document and accordingly the document was prepared since Lingappa was his scribe and also categorically says that he himself Venkoba Rao, Marikamaiah, Narasimmaiah have attested the same and specifically deposed that the testator Kamaiah had put his signature on that document that is registered Will as described above. In the cross-examination also he admits that defendant is a close relative through his wife, but denied the suggestion that the plaintiff was the daughter and merely because he is the relative, his evidence cannot be disbelieved. He categorically says that the deceased Kamaiah was told him that his wife left him. He categorically says that stamp was purchased from one Venkoba Rao on the same day. The document Ex.D1-Will was written by Matanahalli Lingappa at the instance of the deceased Kamaiah. The scribe of the Ex.D1 -Will took 2-3 hours for writing. The document Ex.D1 was registered in the office of the Registrar on the same day.

72. The other witness DW3 also categorically says that defendant No.1 passed away and executant performed the marriage of 1st defendant. The witness re-iterates the evidence of DW2. In the cross-examination also he says they left Sira 58 from Kuntegowdanahalli village at about 9.00 am., and all persons were there and stamp papers were purchased at about 10.30 a.m., and draft was prepared and admits the affixing of signature on Ex.D1 and also says that one Narasimmaiah was present, but Narasimmaiah says that when he had signed the document, he has not affixed his signature to the Ex.D1 in his presence, but the fact is that executant signed the document in the presence of D2 and D3 is not in dispute.

73. It is also important to note that the Court has to take note of the reasons assigned by the Trial Court in not believing the document Ex.D1. Having perused the reasoning the Trial Court comes to the conclusion that having perused the material Kamaiah must have some reason to exclude plaintiff succeed his property because she is the only daughter and no such reasons is mentioned in the Will. This observation is contrary to the document. The executant Kamaiah himself has given the reasons in the Will that he married long back and his wife left her 45 years ago and not having any issues. When such recital is made in the Will itself that not having any issues, question of she is the daughter does not arise and also no such reasons is mentioned 59 in the Will is also a contrary to the document Ex.D1 and he has mentioned the reason for executing the Will and even specifically mentioned that defendant No.1 taken care of him throughout and hence the said finding of Trial Court is erroneous.

74. The other finding that it is burden of defendant No.1 to establish that Kamaiah has executed a Will but Trial Court comes to the conclusion that DW2 is closely related to the 1st defendant through his wife and not accepted the evidence of DW2. The other reason is given that moreover Kamaiah has got sufficient property in his hand and he was very popular in his village and DW2 admitted this fact. Under these circumstances Kamaiah was not having any need or necessity to call DW2 as witness to the Will. This observation is also erroneous, merely because he was a relative and he is not debarred from attesting the document and only Court has to take note of whether the Will was executed by the testator and the same has been attested by the testator in the presence of witness and comes to the conclusion that he would not send any message to DW2 to become attestor to the Will and the same is also against the material on record.

75. The other reason given in paragraph No.45 of the Trial Court judgment there is a serious dispute about the execution of the Will by deceased Kamaiah. The defendant No.1 could produce some admitted document containing the signature of Kamaiah to compare it with disputed signature on the Will. This observation is also erroneous. When the document of Ex.D1 was before the Court and also Ex.D37 admitted was also before the Court, the Trial Court ought to have compared the same along with admitted document under Section 73 of the Evidence Act and not exercised its discretion. Though reference was made that however defendant No.2 has produced sale deed executed by Kamaiah as per Ex.D1-Will and sale deed contains signature and L.T.M of deceased Kamaiah defendant could take commission and sent the same admitted to the disputed signature and L.T.M to expert but no such effort was made but an attempt is made before the First Appellate Court to send the document in view of this observation and application was filed and the same was rejected. This Court while answering the 2nd substantial question of law, comes to the conclusion that First Appellate Court committed an error and this Court sent the 61 document to the hand writing expert and now handwriting expert is very clear that signature available in Ex.D1 and Ex.D37 is one and the same and hence, the same is proved and also the Trial Court comes to the conclusion that DW3 in the cross- examination admits that he is facing the criminal trial for 2 or 3 times and he was suspended from service twice and on that ground disbelieved the evidence of DW3. The Trial Court comes to the conclusion that PW1 to PW4 have denied the execution of the Will and their evidence is not material since they are not the attesting witness to the document, but Trial Court comes to the conclusion that when plaintiff that is daughter of Kamaiah was alive, there was no occasion for Kamaiah to execute Will in favor of 1st defendant, but Trial Court coming to such a conclusion not discussed anything about the averment made in document Ex.D1 itself that he was not having any issues and given more importance to the oral evidence than documentary evidence which came into existence in the year 1975 itself and also the fact that he lived for about 13 years after execution of such Will and the Trial Court giving the reasons that same is not proved and there are suspicious circumstances against the material on 62 record and the judgment which has been referred by the appellant's counsel delivered recently by the Apex Court is very clear only in suspicious circumstances will arise if any shaky signature, a feeble mind, an unfair and unjust disposition of property and propounder himself taking a leading part and no such material found in order to doubt the execution of the Will. The Trial Court committed an error in coming to such a conclusion that Will has not been proved inspite of witnesses have been examined and also the document is a registered document and particularly PW2 and PW3 have admitted that throughout the executant was having sound state of mind. It is not the case of the plaintiff that executant was not having sound state of mind at any point of time. When the executant is having sound State of mind and document was registered and he attested the Will in the presence of DW2 and DW3. The Trial Court doubted the same, the very judgment of the Apex Court is very clear that suspicious circumstances must be real, germane and valid and not merely the fantasy of doubting mind. In the case on hand, the way in which evidence is appreciated by the Trial Court is nothing but fantasy of the doubting mind by the 63 Trial Court in the absence of material on record. When the reason has been assigned in the Will itself for disposing the property belongs to the executant in favour of the defendant No.1 and details are given in the Will itself and the said Will also runs about 4 pages even witnesses have also deposed regarding the same that this document came into existence in the year 1975 and compliance under Section 63 is also that the executant must affix his signature in the presence of the Will and so also the attesting witnesses must sign that document on the direction of the executant and the same is found before the Court and merely in one sentence the witness Narasimmaiah has not signed in the presence of other witness that cannot be magnified while giving the reasons and Trial Court has magnified the same.

76. The First Appellate Court also while appreciating the material on record in paragraph No.22 made an observation that evidence on record that the plaintiffs in the Court below all along disputed the factum and validity of the Will, deed in question alleged to have been executed by Kamaiah in favour of the deceased defendant No.1. But, fails to take note of the reasons given by the Trial Court which I have stated above that Trial 64 Court comes to the conclusion that no reasons are assigned in the Will but on perusal of the document Ex.D1 is very clear reasons are given for executing the Will and also even stated that not having any issues in the said marriage and an observation is made with regard to non appointment of expert and discussed the same, but the very fact that the First Appellate Court rejected the application when the same was filed before the First Appellate Court for sending the document for scientific evaluation is not in dispute. This Court comes to the conclusion that rejection of application for appointment of commissioner is erroneous and ordered to send the same and opinion is received. No doubt the report is not mandatory and the same is directory but coupled with evidence available on record and reasons assigned by the Trial Court and First Appellate Court is erroneous and First Appellate Court comes to the conclusion that Trial Court has rightly appreciated both oral and documentary evidence placed on record but even not looked into the recital of document Ex.D1 while considering the appeal whether reasons have been assigned in the Will to execute the same and committed an error. Hence, the very appreciation of 65 evidence on the part of the Trial Court as well as First Appellate Court is nothing but perversity and not looked into the recital of the Will- Ex.D1. The Will was propounded in the year 1992 itself when notice was given for partition. But, suit was filed after 4 years, but claims that she was in possession of property, then what made her to seek for partition if she is cultivating the land after the death of the testator. It is also important to note that in the plaint it is pleaded that she was dispossessed two years ago and no date of dispossession was given as well as no complaint was given for dispossession. Nothing is placed on record for dispossession before the Trail Court. The theory of dispossession remains only as pleading but the same is not proved. Even if dispossessed suit ought to have been filed under section 6 of Specific Relief Act and not to wait for two years is pleaded. These materials goes against plaintiff, but both courts committed an error in coming to the conclusion that Ex.D1 was not proved. The judgment relied upon by the learned counsel for the respondent that in the second appeal evidence cannot not be re-appreciated cannot be accepted for the reason that there is 66 perversity in the finding. Hence, substantial question of law No.(i) is answered as 'affirmative'.

77. Now, the substantial question of law No.(iii) is with regard to the proving of relationship between the plaintiff and the executant. The Trial Court while considering the evidence on record mainly relies upon the oral evidence of the plaintiff and admittedly no document is placed before the Court that the plaintiff is the daughter of executant Kamaiah. However, believed the evidence of PW2 to PW4 that they have spoken about that she is the daughter of Kamaiah and also consider the evidence of DW5 and DW6. It has to be noted that DW5 and DW6 have been examined on behalf of defendant No.2 and they are not the witnesses of defendant No.1 and merely DW5 and DW6 who have been examined on behalf of defendant No.2 gives an answer that the plaintiff is the daughter of Kamaiah that is not an admission on the part of defendant No.1. The Trial Court while answering issue No.1 comes to the conclusion that oral evidence proves that she is the daughter but no circumstances is placed before the Court to believe the same. The plaintiff relies upon the document Ex.P29 and Ex.P30 which 67 are the voter list and the same is evident in respect of the executant Kamaiah and also the Puttamma who is the wife of Kamaiah and no dispute with regard to the said fact and voter list of plaintiff is not there along with the executant Kamaiah and the same cannot be believed.

78. The counsel appearing for the appellant also relied upon the judgment with regard to the voter list cannot be believed which is referred supra. It is also important to note that the counsel appearing for the respondent also relied upon the several judgments with regard to re-appreciation of evidence in the second appeal. No dispute with regard to the fact that in the second appeal, the evidence cannot be looked into and only Court has to look into the substantial question of law but, it is also settled law that if the evidence is not properly appreciated and any perversity in appreciating the material on record, the Court can look into material available on record. The Trial Court no doubt while answering issue No.1 relied upon the judgment with regard to Section 50 reported in AIR 1973 Panjab and Haryana 2013, the conduct of a person wholly unconnected with the family of having no special means of knowledge about 68 the alleged relationship will be absolutely relevant and not lending any assurance in determining the relationship and paragraph No.10 also extracted opinion of relative is very much important to prove the relationship between the parties. No doubt, the PW2 to PW4 deposes with regard to the relationship and also considered the evidence of DW5 and DW6 but the fact that oral evidence excludes the documentary evidence has not been discussed while answering the issue. The Trial Court never touched upon the recitals of registered document of Ex.D1 that is the executant executed the Will wherein categorically stated that he was not having any issues in the said wedlock and his wife left long back about 45 years and that documentary evidence excludes the oral evidences of witnesses and even not referred the document Ex.D1 while answering the issue No.1 in coming to the conclusion that plaintiff is the daughter of executant and when the executant himself in the year 1975 itself stated that he was not having any issues but considered the evidence of PW2 to PW4, DW5 and DW6. I have already pointed out that DW5 and DW6 are not the witnesses of defendant No.1 and PW2 to PW4 though they are aged about 60 years and 70 69 years as contended by the respondent's counsel, the same is not the vital part. The very executant himself very long back while executing and registering the document on 01.01.1975 itself declared that he was not having issues and nothing has been discussed while coming to such a conclusion that plaintiff is the daughter of Kamaiah referring Ex.D1 by both the Courts.

79. The counsel also relied upon the several judgment with regard to Order 41 Rule 28 of CPC is concerned which have been referred above wherein also the Apex Court held that in AIR 2007 SC 2612 if any additional evidence has been considered then Court has to take note of Order 41 Rule 28 of CPC and also examined the witnesses proving of the facts and First Appellate Court intends to allow the application then it has to allow the application and permit the concerned parties to lead additional evidence and defer the decision on merits. No dispute in the principles and Appellate Court committed an error in answering point No.1 but not complied the same. The judgment which have been relied upon by the counsel for the appellant in respect of Section 50, this Court in the judgment AIR 2022 70 KAR held that no oral evidence to prove adoption in the absence of proof of adoption, refusal to grant declaration reliance placed upon the voter list cannot also be of any consequence, since an entry in the voter list that he was the son of Sadanandaiah cannot establish the adoption, but in the case on hand voter list also does not disclose anything about the plaintiff is the daughter and voter list only in respect of the executant as well as his wife and judgment reported 1995 (1) KAR LJ 663 also held that with regard to the paternity is concerned and paternity of a person cannot be determined on the basis of mere entries in the extract that is birth and death extract document to be used only to prove the date of birth or a death of a particular person and party concerned to lead some other evidence to prove that a particular person was born to a particular man when that point is in issue in the case and no such material and evidence has been placed except relying upon the oral evidence of PW2 to PW4. Regarding Section 50 also concerned, the judgment of this Court 1982(2) KAR L J 485 is very clear that Section 50 does not make evidence of mere general reputation admissible as proof of relationship and the conduct must be of the person who fulfills 71 the essential conditions of section 50. Regarding relationship opinion evidence as to the relevancy is concerned also discussed in the judgment 1966 (1) MYS L J 235 particularly in page Nos.238, 240 and 242 wherein considered the scope of section 50 and nature of proof that would be necessary. No importance can be attached to the any entry unless material is placed and applicable to the Section 50 is indicated in the judgment of AIR 1959 Supreme Court 941 under Section 50 when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of the relationship is a relevant fact and discussed the essential requirements of Section 50. In the case on hand, the very executant himself has declared that he was not having any issues but believe the oral evidence of PW1 to PW4, DW5 and DW6 and documentary evidence was excluded. I have already pointed out that documentary evidence at Ex.D1 is not discussed while coming to such a conclusion and hence, both the Courts have committed an error in accepting the case of plaintiff that she is the daughter of Kamaiah as against 72 the documentary evidence of Ex.D1 and reasons assigned while executing the Will also the same has not been considered. The very contention of respondent's counsel that disinheriting the daughter is one of the suspicious circumstances also cannot be accepted for the reason that no material is placed that she is the daughter when the very executant had made declared in the documentary evidence itself that he was not having any daughter and reason assigned for executing the Will, no suspicious circumstances in view of the discussions made above. Hence, I answer the substantial question of law No.(iii) as affirmative that both the Courts have committed an error in coming to the conclusion that plaintiff established that she is a daughter of Kamaiah and committed an error in granting the relief and hence both the orders requires to be set aside.

80. In view of the discussions made above, I pass the following:

ORDER

i) The Second Appeal is allowed.

ii) The impugned judgment of the Trial Court and the First Appellate Court are set-aside.

Consequently, the suit filed by the plaintiff is dismissed.

Sd/-

(H.P. SANDESH) JUDGE ST/SN/RHS

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Karnataka High Court