Karnataka High Court
Padmavathi vs Ramakrishna Shetty And Another on 9 November, 1998
Equivalent citations: 1999(1)KARLJ462, 1999 A I H C 2922, (1999) 2 CIVILCOURTC 313 (1999) 2 HINDULR 602, (1999) 2 HINDULR 602
ORDER
1. These appeals anse from the judgment and decree dated 14th July, 1987 delivered by (Sri M. Shama Bhat) the II Additional Civil Judge, Mangalore, in Original Suit No. 26 of 1979 dismissing the plaintiffs claim for partition as well as the claim of the first defendant for partition and separate possession of their respective shares.
2. The facts of the case in a nutshell are that the plaintiff Padmavathi filed a suit along with her husband K. Prabhakar Rai (deceased) for division of plaint 'A' to 'D' schedule properties into three equal shares and for allotment of one such share to her in the aforesaid property. The plaintiffs have also sought for relief for accounting the income of mesne profits of the schedule properties with effect from 25-11-1978 till the delivery of the share to them.
3. Before proceeding further, it will be appropriate to mention the relationship inter se between the parties.
Ramanna Shetty and his wife Poovakka Shedthi Padmavathi Yeshoda R. Shetty Ramakrishna Shetty (1st daughter) (2nd daughter) (Third child-son) Plaintiff Defendant 2 1st defendant The above geneology clearly shows that plaintiff 1 and defendants 1 and 2 are blood relations, being sisters and brother. First defendant-Ramakrishna Shetty is the third child of Ramanna Shetty and his wife Poovakka Shedthi. Plaintiff 2-Prabhakar Rai is the husband of plaintiff 1. Plaintiff filed the above suit for partition claiming 1/3rd share with the allegations that Poovakka Shedthi owned and acquired certain immovable properties, apart from other assets including cash and other moveables. According to the plaintiffs case, Poovakka Shedthi died on 25-11-1978 at her residence in Nandoor cross, Kadri, Mangalore. The plaintiff further alleged that Poovakka Shedthi had executed her last Will and Testament on May 6, 1973, which the plaintiff has filed with the plaint. The plaintiff alleged that under that Will dated May 6, 1973 the plaint 'A' schedule properties have been bequeathed to the plaintiff Padmavathi. Plaint 'B' schedule properties have been bequeathed to her son, first defendant and the plaint 'C' schedule properties have been bequeathed to the second defendant. Poovakka Shedthi also owned certain immovable properties described in the plaint 'D' schedule, which are in the possession of tenants. It is further alleged in the plaint that Poovakka Shedthi during her life-time was in possession and enjoyment of the house comprised in No. 3-1408. According to the plaintiff, Poovakka Shedthi was in possession of moveables as mentioned in plaint Schedule 'E'. She asserted that the first plaintiff and the defendants, for the present, are in joint possession of the properties and that she wanted an amicable settlement but there is no chance of the same and therefore, the plaintiff has to file a suit for partition and separate possession as stated in the Will dated 6-5-1973.
4. Defendants 1 and 2 filed their separate written statements.
5. Defendant 1 did not admit the genuineness and validity of the Will said to have been executed by Poovakka Shedthi dated 6-5-1973 and also did not admit or accept the genuineness and the validity of the Will dated 3-6-1966 relied upon by the second defendant in her written statement as having been executed by Poovakka Shedthi. The first defendant asserted that the plaintiff and defendants are in joint and exclusive constructive possession. He also did not admit that the movable items mentioned in Schedule 'E' belonging to Poovakka Shedthi. He also asserted that all the suit schedule properties mentioned in schedules 'A' to 'E' have got to be partitioned, as well as the income and the profits from the properties. In para-1 of the written statement, it is stated that defendant 1 has paid the Court fee with reference to the claim of his share in the partition. He asserted that he is not in actual possession of the schedule properties, is not correct.
6. The second defendant-Yeshoda R. Shetty in her written statement dated 2-6-1979 and additional written statement dated 24-9-1986 asserted and averred that Poovakka Shedthi had executed a registered Will dated 3-6-1966 under which the second defendant claims herself as the sole and absolute owner of all the suit schedule properties owned and possessed by Poovakka Shedthi. Defendant 2 denied and challenged the execution of the Will dated 6-5-1973 set up by the plaintiff and asserted that the said Will had never been executed by Poovakka Shedthi. Defendant 2 further asserted that the Will dated 6-5-1973 relied upon by the plaintiff is not genuine and did not bear the signature of Poovakka Shedthi, nor has it been executed by her, i.e., Poovakka Shedthi. It was asserted that the Will dated 6-5-1973 is a got-up forged document by the plaintiff and defendant 1 with the help of close relatives and hence it is a fraudulent document. It was further averred that the husband of Poovakka Shedthi died on 11-5-1973 and he was seriously ill before his death and therefore Poovakka Shedthi could not have executed the Will dated 6-5-1973 relied upon by the plaintiff. Defendant 2 asserted that the plaintiff and first defendant had no rights whatsoever in the suit properties. It is further averred in the written statement of the second defendant that there was no love lost in the heart of Poovakka Shedthi, for the first plaintiff and first defendant as they did not care to help Poovakka Shedthi and her husband during their life time. This defendant also denied that Poovakka Shedthi has possessed of any immovable properties. The second defendant also alleged that since the Will dated 6-5-1973 is not proved, the suit schedule properties cannot be partitioned and further she alleged that the Will dated 3-6-1966 executed in favour of the second defendant is the last Will and Testament of Poovakka Shedthi, and she was then in a disposing sound of mind.
7. On the basis of the above pleadings of the parties, the Court below has framed the following issues:
(1) Whether plaintiffs prove that Poovakka Shedthi executed her last Will on 6-5-1973?
(2) Is plaintiff 1 entitled 1/3rd share in compensation amount and 1/3rd share in 'A' to 'E' schedule properties?
(3) Is plaintiff 1 entitled to past mesne profits? If so, what is reasonable mesne profits, which plaintiff is entitled to?
(4) Whether plaintiff can claim past mesne profits without paying Court fee on it? Is payment of Court fee of Rs. 100/-proper?
(5) Whether defendant 1 can claim partition and separate possession of his share in plaint 'A' to 'E' schedule properties without paying Court fee on the written statement? (No Court fee is paid 'though there is mention of it in written statement')?
(6) Whether defendant 2 proves that Poovakka Shedthi executed her last Will on 3-6-1966?
(7) Whether suit is bad for non-production of extracts of records of rights of suit lands as contemplated under Section 132 of the Karnataka Land Revenue Act?
(8) Is plaintiff entitled to partition and separate possession of her 1/3rd share?
(9) What decree or order? Additional Issue:
(10) Whether the 2nd defendant proves that Poovakka Shedthi executed her last Will on 3-6-1966?
8. The parties led evidence and on consideration of the entire material on record the Trial Court recorded the following findings:
9. The Trial Court held that the fee paid by the plaintiff is sufficient and that the Court fee paid by the first defendant is a sum of Rs. 100/- is sufficient for the partition claimed by him and hence issue No. 5 does not survive any more. It also found by its order dated 4-12-1980, the predecessor of the learned Civil Judge had deleted issue No. 7. Issue No. 10 as having been found to be repetition of issue No. 6 and as such issue No. 10 has been deleted. The Trial Court further held that Execution Petition 1, i.e., the Will dated 6-5-1973, which is a registered Will, the plaintiff failed to prove the said Will as the last Will and Testament of Poovakka Shedthi. The Court below observed that plaintiff has failed to prove the several circumstances under which the Will was executed. It further held that Ex. 2, the Will dated 3-6-1966, to be the last Will and Testament executed by Poovakka Shedthi. It further held that in view of the finding on issue No.6 the second defendant has established that the Will dated 3-6-1966 is the last Will of Poovakka Shedthi and was executed by her when she was in a good state of mind, under which Yeshoda R. Shetty is the exclusive owner of the suit schedule properties and after the death of Poovakka Shedthi Ex. D. 2 did come into play and thereunder properties of Poovakka Shedthi did vest on the second defendant. It held that the first plaintiff and the first defendant have got no manner of right, interest or title or share in the suit schedule properties left behind by Poovakka Shedthi, nor to any mesne profits and the Trial Court, therefore, dismissed the suit and directed the first plaintiff to pay the costs of second defendant.
10. Feeling aggrieved from the judgment and decree of the Trial Court dismissing the plaintiff's claim in the suit, the first plaintiff has come up in appeal by riling Regular First Appeal No. 733 of 1987 as the Trial Court did not decree the suit. The first defendant has also filed Regular First Appeal No. 4 of 1988 as Trial Court held that first defendant had got no right, title or interest in the suit properties and dismissed his claim as well.
11. I have heard Sri B.L. Acharya, learned Counsel for the appellant in Regular First Appeal No. 733 of 1987 and Sri S.B. Pavin, learned Counsel appearing for the appellant in Regular First Appeal No. 4 of 1988, who was also appearing for the first respondent in Regular First Appeal No. 733 of 1987 and Sri Mohandas N. Hegde, learned Counsel appearing for Yeshoda Shetty, respondent 2 in both the appeals.
12. The learned Counsel appearing for the appellant in Regular First Appeal No. 733 of 1987, namely, Sri B. L. Acharya, contended that the Court below acted illegally in dismissing the plaintiffs suit for partition of 1/3rd share. He submitted that under the law, as applicable on the death of Poovakka Shedthi in the month of November, 1978, the first plaintiff (Padmavathi) and first defendant (Ramakrishna Shetty) and respondent 2-defendant are entitled to equial 1/3rd share each, in each of the suit schedule properties as well as under the law, apart from or in addition to the basis of the Will dated 6-5-1973, which has been the last Will and Testament executed by Poovakka Shedthi. He further submitted that the Court below erred in law in holding that the plaintiffs have failed to prove the execution of Ex. P. 1-Will dated 6-5-1973. He submitted that the evidence of P. Ws. 1 to 3 establishes the execution of the Will-Ex. P. 1. He further submitted that there has been no suspicious circumstance to call for an explanation and if there was any, it has already been properly explained. The contradictions in the evidence of P. Ws. 1 and 2, if any, are only marginal. He submitted that the Court below ought to have held that the evidence led by the appellants and their witnesses clearly has established that Ex. P. 1 dated 6-5-1973 was genuine document and the last Will and Testament executed by Poovakka Shedthi. Learned Counsel further urged that the Court below should have held that Ex. P. 2-Will dated 3-6-1966 had not been proved to have been duly executed by Poovakka Shedthi and the suspicious circumstances surrounding the Will dated 3-6-1966 have not been explained by the second defendant, including in particular as to why Poovakka Shedthi deprived her other two children, namely, plaintiff 1 and defendant 1 of any share or interest in the suit schedule properties, under the Will dated 3-6-1966, Ex. D. 2. He further submitted that plaintiff 1 and defendant 1 being the daughter and son respectively of Poovakka Shedthi, why the entire properties have been given to the second defendant-respondent-Yeshoda R. Shetty. The Counsel further contended that unless and until there are reasons or special circumstances, she could not and would not have deprived her two children, i.e., plaintiff 1 and defendant 1, i.e., two appellants of the legitimate rights to succeed. According to the learned Counsel, under the above circumstances, the Court below should have held that the Will-Ex. D. 2 has not been established beyond doubt. It is submitted that no doubt, the Will dated 6-5-1973 has the effect of cancelling the earlier Wills, if there was any, and according to the first plaintiff and first defendant, they did not know about the execution of the alleged Will dated 3-6-1966. The first defendant has not admitted the execution of Ex. D. 2-Will. If the two Wills, i.e., Ex. D. 2 and Ex. P. 1 are found to have not been proved, then the ordinary law of succession, comes into play, which was operative on the date of death of Poovakka Shedthi, whereunder each of the heirs of Poovakka Shedthi, namely, defendant 1 (appellant in Regular First Appeal No. 4 of 1988) and his two sisters are entitled to 1/3rd equal share each and therefore the Court below ought not to have dismissed the claim made by the plaintiff-appellant as well of first defendant. The first defendant (appellant in Regular First Appeal No. 4 of 1988) has filed his written statement separately making claim for partition and seperation of his 1/3rd share by paying the requisite Court fee for his one-third share in the suit schedule properties. The learned Counsel contends that really the Court below did not apply its mind to this aspect of the matter.
13. The contentions made on behalf of the appellants in the two appeals have been hotly contested. Sri Mohandas N. Hedge, learned Counsel appearing for the second respondent, submitted that the plaintiff's claim being based on the Will dated 6-5-1973 (Ex. P. 1) the strong burden did lay on plaintiff to prove the due execution of the said Will, alleged to have been executed by Poovakka Shedthi and remove the suspicious circumstances as well, but she has failed to establish the same beyond doubt. The learned Counsel further contended that it is well-settled law that a person claiming rights under a Will has to establish the due execution of the Will according to law and he has to remove the doubtful and suspicious circumstances or circumstances surrounding the execution of the Will. The finding of the Court below is that the plaintiff has failed to remove doubtful and suspicious circumstances and as the necessary consequence as such the Court below had to dismiss the suit, on due execution of Will dated 6-5-1973 not being established. The learned Counsel for respondent 2 further contended that once the Court below has come to the conclusion that the Will dated 6-5-1973 was not proved according to law, by the plaintiff and the Will dated 3-6-1966 having been proved according to law, there was no question of defendant 1's claim being decreed as the Will had to operate and govern the succession in preference to ordinary law of succession. He further submitted that Poovakka Shedthi was not happy with plaintiff 1 and therefore there was good reason for excluding plaintiff 1 from succession. In this connection the learned Counsel for the respondents has made reference to the decision of the Supreme Court.
14. It has been contended on behalf of the respondents that one of the important suspicious circumstances has been that in the matter of execution of Ex. P. 1, husband of first plaintiff, appellant 1, namely K. Prabhakar Rai, plaintiff-appellant 2 in Miscellaneous First Appeal No. 733/87 had also taken prominent part in the execution of the Will dated 6-5-1973 (Ex. P. 1) and this casts doubt about the execution of the Will-Ex. P. 1, which has also been considered by the Court below. In this connection, the learned Counsel relied on the observations of the Trial Court. He submitted that the second appellant had taken active part in execution of the Will-Ex. P. 1 and this by itself was suspicious circumstance effecting due and valied execution of Ex. P. 1. He further contended that Ramanna Shetty, husband of the Testator, Poovakka Shedthi, was ill and he was hospitalised and this circumstance shows that Poovakka Shedthi could not have executed the Will-Ex. P. 1 and it appears to be an artificial forged document. He further submitted that another witness, who participated in the execution of the Will, is none else than the father-in-law of Ramakrishna Shetty, the appellant in Regular First Appeal No. 4 of 1988. The learned Counsel further contended that the document and the papers, per se, reveal, it contained the signature of Poovakka Shedthi, and also the signatures of Thimmappa Alva (P.W. 1), 2nd plaintiff-Prabhakar Rai and then Vasanthrama Shetty. The Will was signed by Poovakka Shedthi after fully reading out of the said Will and explained the same to her in Tulu but circumstances indicate otherwise. The learned Counsel for the respondent further submitted that the circumstances under which Poovakka Shedthi was placed on account of serious illness of her husband and that she had no occasion to have free consultation and advice and further that the manner in which the signature alleged to be that the Poovakka Shedthi on the Will appear to create doubt as to its due execution of the Will-Ex. P. 1. Sri Mohandas N. Hegde further submitted that as the Will relied upon by the first plaintiff could not have been executed keeping in view of the circumstances and situations, Smt. Poovakka Shedthi was placed create much suspicion and doubt as to the execution of the Will-Ex. P. 1 at that time, these suspicious circumstances remaining unexplained cast doubt as to due execution of Ex. P. 1-Will dated 6-5-1973 and as such the Trial Court was justified in dismissing the suit of the plaintiffs as well as in not granting the claim of defendant 1, keeping in view of Ex. D. 1, i.e.. Will dated 3-6-1966 proved to have been executed by Poovakka Shedthi in favour of respondent i.e., first defendant.
15. I have applied my mind to the contentions of the learned Counsels for the parties.
16. For a proper decision of the matter, the following points arise for consideration.
(A) Whether it has been established by the plaintiffs beyond suspicion that Ex. P. 1-Will, i.e., the Will dated 6-5-1973 which has been relied upon by the plaintiffs had been duly executed by Poovakka Shedthi with sound mind, full understanding and knowledge without and free from any suspicion as a free executor?
(B) Whether there are any suspicious circumstances in relation to the execution of the Will (Ex. P. 1) and whether these suspicious circumstances have been explained by the plaintiffs or the evidence on record produced by them?
(C) If the answer to point Nos. (A) and (B) is in the affirmative, what is its effect?
(D) Whether the second respondent, that is the main contestant (Defendant 2) has established that due execution of the Will dated 3-6-1966 by Poovakka Shedthi as a free agent, with her free will and sound mind and beyond any suspicious circumstances? If yes, what is its effect?
(E) If the due execution of the Will-Ex. P. 1 dated 6-5-1973 Ex. D. 2-Will dated 3-6-1966 is not proved or established and these two Wills are not proved to have been executed by Poovakka Shedthi, whether the first plaintiff-appellant and first defendant, i.e., respondent 1, are entitled to claim under the law applicable any share in the suit schedule properties left behind by Poovakka Shedthi? If yes, what are their respective shares and whether they are entitled to partition and separate possession of their respective shares?
17. Before I proceed to examine the evidence of the parties on record of these questions, it will be appropriate to observe that so far as the Wills are concerned, it is one of the settled principles of law with reference to proof of Will, that, mere fact of registration of a Will, is no proof of its execution under the provisions of Section 68 of the Indian Evidence Act. That Section 68 provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses 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., Proviso to the said section provides 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. But this provision contained in the proviso is subject to another exception, namely the exception provided under proviso will not apply to the case of a Will. It means, the general principles under Section 68 require production of at least one attesting witness is mandatory for the purpose of proving the due execution of the Will, provided at least one of the attesting witnesses is alive and capable of giving evidence and subject to the process of the Court.
Section 63 of the Indian Succession Act provides the prescribed procedure of execution of an unprivileged Will and it provides that every Testator not being a soldier employed in an expedition nor engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will by signing as the Testator or affixing his marks to the Will, or it shall be signed by some other person in his presence and by and under his direction. Clause (b) of Section 63 provides that the signature or mark of the Testator, or signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will and sub-clause (c) further provides that the Will shall be attested by two or more witnesses, each of whom has seen Testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and on or under the direction of the Testator, or has received from the Testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
18. The law on this subject of proof of execution of the Will has been succinctly and clearly laid down in very many cases of their Lordships of the Supreme Court.
19. In the case of Jaswant Kaur v Amrit Kaur and Others, their Lordships of the Supreme Court have been pleased to lay down the law as under:
"....., Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidences were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the Will by his grand-father Sardar Gobinder Singh.
In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the Testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will".
In the aforesaid case, the Supreme Court has further observed thus:
"Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. 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 and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the Testator or that the Testator was in a sound and diposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the Testator who would normally receive their due share in his estate were disinherited because the Testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the Testator.
It is in connection with Wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the Testator, the Court is and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the Testator.
If a caveator alleges fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the Testator was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter".
20. In the case of Bhagwan Kaur v Kartar Kaur and Others, their Lordships of the Supreme Court have been pleased to lay down in para 4 of the judgment on the subject as under:
"Decision on due execution of Will strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic. provided) in which a Will shall be duly executed. It inter alia provides that 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 acknowledgment of his signature or mark, or of the signature of such other person, and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. In the matter of proof of a Will Section 68 of the Indian Evidence Act, 1872 enjoins that 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. Proviso thereto states 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, unless its execution by the person by whom it purports to have been executed is specifically denied".
21. Keeping these principles in view, it has to be examined, whether the plaintiffs have proved that Ex. P. 1, the Will dated 6-5-1973, in the first instance, as the last Will of Smt. Poovakka Shedthi. Before proceeding to examine the question of proof of execution of this Will, it will be appropriate to have broad idea of the contents of the Will (Ex. P. 1). In para 1 of the Will (Ex. P. 1) the Testator Poovakka Shedthi has given description and it has been mentioned that she was executing the Will-Ex. P. 1 dated 6-5-1973 out of her free will with free and sound disposing state of mind. In para 2 of the said Will the Testator has mentioned herself to be the owner and holder of the plaint schedule properties mentioned therin. In para 3 of the said Will, the Testator has mentioned that she is having three children, namely, two daughters (i.e., plaintiff 1-Padmavathi and defendant 2-Yeshoda R. Shetty) and one son, namely Ramakrishna Shetty, (the appellant in Regular First Appeal No. 4 of 1988). He is the first respondent in Regular First Appeal No. 733 of 1987. It is mentioned in the Will that the husband of the Testator was Badilaguthu Ramanna Shetty. The husband of the Testator at the time of executing the Will-Ex. P. 1 was admitted in Vijaya Clinic, Mangalore due to ill-health. In para 4 of the Will it has been mentioned very clearly that the Testator has fully revoked her earlier Will (Ex. D. 2) dated 3-6-1966 and after having revoked the said Will (Ex. D. 2) by this Will (Ex. P. 1 dated 6-5-1973) with her own free will and sound disposing state of mind, in the presence of her husband she has executed the Will-Ex. P. 1 dated 6-5-1973 as the last Will be operative after her demise. Under the Will-Ex. P. 1 it has been stated that after the death of the Testator, out of the property at Santhoor Cross, Kadri Grama, the premises bearing No. 3-1405 and the 30 cents cf adjoining land shall devolve upon her eldest daughter Padmavathi (appellant in Regular First Appeal No. 733 of 1987); the premises No. 3-1404 and 30 cents of land-adjoining lands shall devolve upon her son Ramakrishna Shetty and the premises No. 3-1048 where she was residing and the balance land available after apportioning shall devolve upon her second daughter Yeshoda R. Shetty, who at the time of execution of Ex. P. 1 was residing with the Testator and who was taking care of the Testator without any objection. In the next para, it is mentioned that the other properties moveable and immovables belonging to her shall, after her life time, devolve upon all the three children, namely, the two daughters and son Ramakrishna Shetty equally. In the Will it is also mentioned that this Will has been executed by the Testator, after considering the pros and cons out of her free will with sound state of mind, in the presence of her husband. Under this Will she appointed Kadiyalaguthu Prabhakar Rai, the husband of her elder daughter Padmavathi as the executor of the Will, Ex. P. 1.
22. This Will-Ex. P. 1. appears to have been attested by three attesting witnesses namely, Thimmappa Alva, Prabhakar Rai and Vasanthram Shetty. The plaintiffs have examined Thimmappa Alva as P.W. 1, and Vasantharam Shetty as P.W. 2. P.W. 3, Komme Govinda Bhat is examined, as he had been appointed as the Commisioner for holding inspection and inventories. It may be taken note of that as per the well-settled principle of law to prove the execution of the Will, at least one of the attesting witnesses should be examined, if alive. It is not necessary that all the attesting witnesses should be produced. P.W. 1 is known to the family of Poovakka Shedthi and her husband. The Testator and Thimmappa Alva are related, as daughter of P.W. 1 namely, Lakshmi, was married to Ramanna Shetty's son, i.e., Ramakrishna Shetty, the son of Poovakka Shedthi.
23. P.W. 2-Vasantharam Shetty is the nephew of the husband of Poovakka Shedthi. According to his statement, Ramanna Shetty and his wife Poovakka Shedthi were related to this witness as Ramanna Shetty, the husband of the Testator is stated to be the maternal uncle of P.W. 1. Thus P. Ws. 1 and 2 are related to the family of the Testator. Mainly because the two attesting witnesses are related to the family of the Testator, it cannot be said that their testimony is not worth reliance. In such cases where a person executes a Will or document like this as per ordinary human conduct one who is related to the Testator is made to attest the Will. He may be relative or friend known to the family is requested to be an attesting witness. The evidence of these two witnesses who are attesting witnesses, have to be considered on its own merits. Ex. P. 1 as well as the statements of P. Ws. 1 and 2 very clearly and fairly exhibit and show that at the time of the Will was executed by Poovakka Shedthi, her husband Ramanna Shetty was ill and was undergoing treatment in the Vijaya Clinic. P.W. 1, who was one of the attesting witnesses to Ex. P. 1-Will has stated in his evidence that in May 1973 Ramanna Shetty was admitted in the hospital for treatment and this witness, P.W. 1 visited him when he was in the clinic. He further stated that when he visited the hospital, Poovakka Shedthi executed a Will. He gave the details that on the day when he visited the hospital, to see Ramanna Shetty, who was ill, Prabhakar Rai, the second plaintiff, who was the husband of the first plaintiff and who has been appointed under Ex. P. 1-Will as the executor of the Will brought the same to the hospital. At that time, plaintiffs 1 and 2, the second defendant, Ramanna Shetty, Poovakka Shedthi, P.W. 1-Thimmappa Alva himself and Vasantharam Shetty were all present in the hospital. The Will was written in Kannada. P.W. 1 states that the second plaintiff read the Will and after reading of the same, the second plaintiff translated the gist of the same and explained it to Poovakka Shedthi in Thulu language. He further stated that Poovakka Shedthi, the Testator admitted the correctness of the recitals in the Will and then she has signed the Will in the presence of all the persons referred to above, who were present in the hospital at that time. After Poovakka Shedthi signed the Will, P.W. 1 Thimmappa Alva, the second plaintiff-Prabhakar Rai and Vasantharam Shetty (P.W. 2) attested the Will as attesting witnesses. The Will-Ex. P. 1 was shown to the witness and he admitted that was the very document that was executed on that day and he identified the signatures of the Testator, marked as Ex. P. 1(a) and Ex. P. 1(b). His signature is at Ex. P. 1(c) contained in Ex. P. 1, as well as the signatures of other two attesting witnesses. This witness has deposed that Poovakka Shedthi, the Testator, at that time of executing the Will, Ex. P. 1. was in a sound state of mind. He has further stated that after the Will was executed and signed, it was retained by Poovakka Shedthi. In the cross-examination this witness has stated that Ramanna Shetty was not keeping good health at the time of execution of the Will-Ex. P. 1. by the Testator. He has further stated in the cross-examination that Ramanna Shetty said that the Testator had done a good thing by executing the Will as per Ex. P. 1, as his condition was very serious. P.W. 1 stated that after a few days of his discharge from the hospital, the husband of Poovakka Shedthi died. The husband of Poovakka Shedthi was suffering from Jaundice. This witness states that when the Will was read over and explained to the Testator both in Kannada and Thulu by the second plaintiff, the witness heard the contents of the Will, Ex. P. 1. He said that he cannot tell verbatim, the contents of the Will, but as far as he rembmers that under the Will it has been provided as all the children of Poovakka Shedthi get equal shares. He further deposes that after the gist of Ex. P. 1 was explained to her, in Thulu language by the second plaintiff, the Testator Poovakka shedthi said that the Will was written as desired by her. He further states from the contents of the Will read over by the second plaintiff, he came to know that Poovakka Shedthi had cancelled her earlier Will-Ex. D. 2. This witness states that,--
" When second plaintiff read out the Will I came to know that as per Ex. P. 1 the earlier Will was cancelled".
He further states that Ramanna Shetty told to his wife Poovakka Shedthi, the Testator that she has done a correct thing by executing Ex. P. 1. This witness states that Poovakka Shedthi asked him to attest the Will-Ex. P. 1, after she had signed it. He further states that Poovakka Shedthi did not ask the second plaintiff, if he had brought any witnesses. P.W. 1 states in para 8 of his deposition that after the witnesses signed Ex. P. 1, the second plaintiff handed over the same to Poovakka Shedthi and she later on gave it to the second plaintiff, who signed it as a witness.
24. P.W. 2, another attesting witness of the Will has also stated that during the month of May 1973, Ramanna Shetty was undergoing treatment in Vijaya Clinic Hospital, opposite to Bunts Hostel and he has stated that he went to see Ramanna Shetty along with P.W. 1-Thimmappa Alva. This witness also stated to have gone to the hospital to see Ramanna Shetty and on that day of his visit to the hospital, Ramanna Shetty's wife Poovakka Shedthi executed the Will-Ex. P. 1 in the hospital. He states that he attested the Will-Ex. P. 1 as a witness and he admitted that Ex. P. 1 which was shown to him is the same Will. This witness states that the Will-Ex. P. 1 was signed by Poovakka Shedthi in the presence of the witnesses, i.e., himself and P.W. 1 and the second plaintiff. He further states that apart from P.W. 1 and himself, second plaintiff also signed the Will as an attesting witness. This witness states that at the time of execution of the Will by Poovakka Shedthi, she was in a sound disposing state of mind. This witness further stated that before Poovakka Shedthi signed the Will-Ex. P. 1, the second plaintiff read over the Will-Ex. P. 1 in Kannada and explained the gist of the Will in Thulu language to Poovakka Shedthi. According to this witness, the Will after being read over and explained to the Testator Poovakka Shedthi, Poovakka Shedthi did sign the Will-Ex. P. 1. He has identified the signatures of Poovakka Shedthi at Ex. P. 1 at Ex. P. 1(a) and P. 1(b). According to this witness, the attesting witnesses also put their signatures on the Will-Ex. P. 1 and after the Will was signed by the second plaintiff, it was handed over to Poovakka Shedthi. P.W. 2 states that when he went to see Ramanna Shetty, he was in a position to talk, irrespective of the fact that he was seriously ill. P.W. 2 states that he did not remember that Ramanna Shetty has said anything about the Will at that time. This witness stated in the cross-examination that Ramanna Shetty responded to his enquiries about his health. In the course of cross-examination this witness states,-
"After signing Ex, P. 1, I saw it for the first time only in the Court on the other day..... I saw the Will-Ex. P. 1 on that day for the first time at about 10.30 A.M. when the second plaintiff Prab-hakar Rai handed over the Will to Poovakka. Then Poovakka read the Will. After reading the Will, she put her signatures in the Will. Then, Poovakka handed over the Will to P.W. 1 for his signature. P.W. 1 after signing the Will, passed it on to second plaintiff. The second plaintiff after signing the Will gave it back to Poovakka".
25. The Trial Court has rejected the Will-Ex, P. 1 as not proved to be the last Will and testament of Poovakka Shedthi on the ground that the plaintiffs have failed to remove several suspicious circumstances surrounding the Will, namely, the illness of her husband. The Court below, however, observed that Prabhakar Rai had taken active part in the execution of the Will-Ex. P. 1 as he was also the executor under the Will and he played a prominent part in the execution of Ex. P. 1 on 6-5-1973. This by itself was a suspicious circumstance casting a strong suspicion regarding the execution of the Will-Ex. P. 1 as executor is none other than the husband of the first plaintiff.
26. The learned Counsel for the second respondent as well laid much stress on the suspicious circumstances.
27. It is no doubt a well-settled principle of law that a person who relied on a particular Will as the last Will of the Testator has to prove and he has also to explain and remove the suspicious circumstances surrounding the execution of the Will. Their Lordships of the Supreme Court in H. Venkatachala Iyengar v B.N. Thimmajamma and Others, observe thus:
"Apart from the suspicious circumstances to which we have just referred in some cases, the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to Wills but any objection to the use of the word 'conscience' in this context would in our opinion, be purely technical and academic, if not pedantic. The test merely emphasises that in determining the question as to whether an instrument produced before the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the Testator who is no longer alive".
28. It is to be taken note of that so far as the present Wilt-Ex. P. 1 is concerned, that Ex. P. 1. dated 6-5-1973 does not show any benefit or substantial benefit can be said to have passed on or said to have been given to the second plaintiff, husband of the first plaintiff. It is also to be taken note of that the Will-Ex. P. 1 mentions that the Testator of the Will executed in 1973 thereby completely and fully revokes the Will dated 3-6-1966 and that Ex. P. 1, i.e.. Will dated 6-5-1973 was executed by the Testator with sound state of her mind and free will in the presence of her husband as her last Will. Why this Will was executed by the Testator and earlier Will dated 3-6-1966 referred in Ex. P. 1, was being revoked or cancelled stands explained by the contents and effect of Ex. D. 2, i.e., Will dated 3-6-1966 and law of succession, i.e., Hindu Succession Act as then operating.
29. In the instant case, the succession would have been governed in the absence of Will dated 3-6-1966 under the Hindu Succession Act.
30. Section 15 of the Hindu Succession Act reads thus:
"General rules of succession in the case of female Hindus.--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16.-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother".
(Clause (a) of sub-section (2) of Section 15 had been omitted and Section 23 had been omitted) Section 17 of Hindu Succession Act, 1956 clearly reveals that for clauses (a) to (e) of sub-section (1) of Section 15 of the Act, clauses (a) to (e) of Section 17(ii) have been substituted as under:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother;
(b) secondly, upon the father and the husband;
(c) thirdly, upon the heirs of the mother;
(d) fourthly, upon the heirs of the father; and
(e) lastly upon the heirs of the husband.
31. This section thus makes or enacts special provision of law in respect of persons who were prior to enforcement of Hindu Succession Act, 1956 were governed by either Marumakkathayam law or Aliyasanthan law or in other words in language of Act. "in respect of the persons who would have been governed by the Marumakkathayam law or Aliyasanthana law, if the Act i.e., (Hindu Succession Act, 1956) had not been passed". Thus it leads me to hold that the succession operating in case of such persons as well as referred to above, since after the enforcement of Hindu Succession Act thereafter is controlled and governed by Section 15 as amended by Section 17(ii) of the Act. That in view of above, under the law as operating after 17-6-1956, i.e.,in 1966 and 1973 and at the time of death of Poovakka Shedthi, in the absence of any Will, i.e., under ordinary law of succession then applicable at the time of death of Poovakka Shedthi, all the three children would have succeeded to the properties left behind by her equally. This is the legal position to be kept in mind along with natural instinct of love and affection of a mother for her children while examining the question involved and the Will and its execution. It is nobody's case that the mother of Testator was alive at the time the Testator Poovakka Shedthi had executed the Will or appears to have executed the Will in question. The i.e., two daughters, viz., plaintiff 1 and second defendant and the son first defendant were her heirs, had there been no Will. The husband would not have come in the picture as her legal heir. Apart from that, no mother deprives or prefers to deprive in the ordinary and natural course of things or events of life any of her child, may be a son or a daughter, of his or her right to succeed or to get the share in the properties to be left behind, by her, on her death, unless there are special circumstances or situations leading her to do the contrary. Any one alleging to contrary has to plead and prove or establish those circumstances. Thus, in ordinary course of law operating governing intestate success three children would have been entitled to equal share, i.e., one-third share each in the properties of her or his mother, the Testator. While deciding the matter on its merit, this has to be kept in mind.
32. The contents of the Will dated 6-5-1973 (Ex. P. 1) reveal that she had intended to and had revoked the earlier Will (Ex. D. 2) dated 3-6-1966 as the reading of Ex. P. 1 reveals that she had revoked the earlier Will-Ex. D. 2, only with the object to give all the three children equal shares as per the direction of Ex. P. 1 and has done as it appears to be just to all her children. When I consider this aspect with reference to the earlier Will-Ex. D. 2, relied upon by the 2nd defendant-Yeshoda R. Shetty, a special circumstance, question arises or comes out as to why the Will dated 6-5-1973 had been executed. A reference of the Will dated 3-6-1966 has come in this document. If Ex. D. 2-Will dated 3-6-1966 is considered as the last Will, under that Will the entire properties, to which under law of succession, all the three would have been entitled, appear to have been bequeathed in favour of defendant-2-Yeshoda R. Shetty only by the Testator Poovakka Shedthi and not a single pie has been bequeathed either to the first plaintiff, the elder daughter or to son-the first defendant Ramakrishna Shetty in the suit. When I put myself in her position, i.e., in the position of a father or mother and have a look or examine the Will-Ex. D. 2 dated 3-6-1966 I find that the two children of Poovakka Shedthi namely, the first plaintiff and first defendant have not been provided or allotted anything in the properties put the question why? There is neither any special circumstance therefor has been established or shown, i.e., alleged or proved. This by itself discloses by the reason for execution of Will-Ex. P. 1 by Poovakka Shedthi. Poovakka Shedthi with an intent and an object to do justice to all her three children from horrible situations, which would have resulted from Ex. D. 2-Will dated 3-6-1966. That Poovakka Shedthi appears to have realised injustice flowing therefrom, i.e., Ex. D. 2-Will dated 3-6-1966 would have decided to and did, revoke the Will-Ex. D. 2 by execution of another Will, i.e., Ex. P. 1 dated 6-5-1973 and so she did execute the Will dated 6-5-1973 (Ex. P. 1) and this in the natural course would have satisfied her ailing husband as well deposed by P.W. 1. during the course of cross-examination.
33. How Ex. D. 2 was executed in another matter. But I am referring here Ex. D. 2 is to consider the circumstance under which the second Will-Ex. P. 1 came to be executed by Poovakka Shedthi. Under Ex. P. 1 none of her three children has been deprived of his or her interest in getting the properties under succession. Had there been no Will earlier, she must not have made a mention in Ex. P. 1 in regard to the execution of the earlier Will-Ex. D. 2. There is no mention in Ex. D. 2 in regard to the first plaintiff and the 1st defendant, son. The intention of Poovakka Shedthi was to Will away her properties to her three children equally. Under Ex. D. 2 no benefit has been given either to her elder daughter or the only son Ramakrishna Shetty, either meager or substantial. No doubt, it is a very suspicious unexplained feature of Will-Ex. D. 2. Under Ex. D. 2 no property or other benefit has been given to the first plaintiff. The suspicious circumstances that arise in a case where the propounder of the Will takes active part in the execution of a Will and gets larger or entire bounty under the Will while other heirs are deprived and denied thereof, such is not situation as regards Ex. P. 1, in the present case. The position of law under which all the three children would have got equal shares, i.e., one-third share each in the property of the mother on her dying intestate. In this view of the matter, execution of the Will-Ex. P. 1 dated 6-5-1973, i.e.,mere participation of plaintiff 2 cannot and does not amount to be under a suspicious circumstance shrouding the genuineness of the Will, and especially when neither plaintiff 1's husband has got any benefit nor has plaintiff 1, i.e., appellant got, nor has been given anything exceeding her legible legal interest or share. That as regards Ex. D. 2, Will dated 3-6-1966 the second defendant has examined herself as D. W. 2 and has examined one attesting witness (namely, D. W. 6) to prove Ex. D. 2. Their evidence did not clearly establish the execution of the Will-Ex. D. 2 of her free Will by the Testator, which Will has been relied by defendant-respondent 2 as no satisfactory reason or cause or circumstance has been established to explain why Poovakka Shedthi would have deprived her two children, i.e., the first plaintiff, elder daughter and defendant 1 (son) of their right to succeed to the estate belonging to her, on her death and bestowed all bounty to defendant- respondent 2 only.
34. It has been contended that the plaintiff 1 has not come and examined herself as witness and therefore adverse inference has to be drawn against her. The first plaintiff was not a necessary witness to be examined and law prescribed specific mode. The law requires that the execution of the Will has to be proved by examining at least one of the attesting witnesses of the document-Will, if available. In the case on hand, both the attesting witnesses were examined in regard Ex. P. 1 in addition to plaintiff 2, i.e., husband being examined. Further there was no case pleaded in the written statement by defendant 2 that plaintiff 1 had taken some gold ornaments of her mother Poovakka Shedthi and had not returned it to her, so the mother Poovakka Shedthi was unhappy which new stand defendant 2 as D. W. 3 has taken in witness box without substantiating the same by any material evidence and particularly long after closure of plaintiffs evidence. So no adverse inference can or need be drawn against plaintiff-appellant 1 for her non-appearance in witness box and hence the contention of respondent 2 is without any substance. The effect of finding that the Will-Ex. P. 1 dated 6-5-1973 is proved to be the last Will of the Testator Poovakka Shedthi and duly executed by her and the earlier Will-Ex. D. 2 relied by defendant 2, i.e., respondent 2 even if be taken as executed by Poovakka Shedthi or is proved to have been executed by her, the said Will-Ex. D. 2 dated 3-6-1966 stands revoked automatically. The Will-Ex. D. 2 dated 3-6-1966 no doubt, has been of full of suspicious circumstances, as to why and for what reason the Testator would have deprived her other two children, namely the first plaintiff and the first defendant, of their right of succession under the ordinary law in force, there is no circumstance and cause explaining that has been established by defendant 2. Really, the execution of Ex. D. 2, which had the effect of depriving the other two children of the Testator, namely, the first plaintiff and the first defendant might have been given and could have been reason for the Testator to execute the second Will-Ex. P. 1, revoking the earlier Will-Ex. D. 2. In this view of the matter, I am of the opinion that the Will-Ex. P. 1. dated 6-5-1973 stands proved beyond all suspicious circumstances, even if Ramanna Shetty was ill, and his condition was serious. It is but natural that at the last moment, the father must have been feeling mentally disturbed by denial of their equal shares of the other two children in the properties in question to them because of the Will-Ex. D. 2. Hence, Ramanna Shetty must have pursuaded his wife Poovakka Shedthi to revoke the earlier Will-Ex. D. 2 and to make the present Will-Ex. P. 1. Therefore, it would have been natural for Ramanna Shetty even if he was ill, to have expressed satisfaction after having taken note of the injustice which had been done under the earlier Will dated 3-6-1966 Ex. D. 2 having been removed and set at naught by the execution of the second Will-Ex. P. 1 dated 6-5-1973, and that he would have expressed in the hospital as deposed by P.W. 1, when he stated in the cross-examination as under:
"The only talk that I remember between Ramanna Shetty and Poovakka is that Ramanna Shetty told Poovakka that she did a right thing in executing the Will as per Ex. P. 1".
There is nothing unnatural in the so telling of Ramanna Shetty in the context of the circumstances referred to above, Poovakka Shedthi died sometime in the year 1978. Under her last Will, Ex. P. 1 dated 6-5-1973 all the three children should/did succeed as heirs and each of them must get one-third share in the properties left behind by her and as such plaintiff 1 is entitled to get her one-third share under the Will-Ex. P. 1 and also Ramakrishna Shetty (1st defendant), her son who is the appellant in Regular First Appeal No. 4 of 1988 is to get another 1/3 share therein.
35. Therefore, in my considered view, the claim of the first plaintiff-Padmavathi V. Rai, in the suit for partition has to be decreed and the claim of the first defendant-Ramakrishna Shetty, with regard to his 1/3 share under the Will-Ex. P. 1 is also to be decreed. It appears defendant 1-Ramakrishna Shetty has already paid the Court fee. So he is entitled to a decree in his favour, for, one-third share in all the suit properties, left behind by his mother Poovakka Shedthi. If there is any deficiency in the Court fee, which he has already paid, the same if required shall be paid by him.
36. In the result, both the appeals are allowed, the judgment and decree of the Court below dated 14-7-1987 dismissing the suit has to be and is set aside and as mentioned earlier, the claim of partition and separate possession of one-third share each of the appellant 1 in Regular First Appeal No. 733 of 1987 (i.e., first plaintiff in Original Suit No. 26 of 1979) and appellant in Regular First Appeal No. 4 of 1988 are hereby decreed as prayed for and with costs throughout against the defendant-respondent 2 in both the appeals.