J T Surappa S/O Late J S Thimmappaiah vs Sri Satchidhananadendra Saraswathi ... on 16 April, 2008
28. In further arguments, it is submitted that,
deceased Ramaiah bequeathed 'A' schedule property
to plaintiff and defendants No.1 and 2 and
beneficiaries have acted upon and enjoying their
respective shares. He has relied upon decision of
Hon'ble High Court reported in Sri J.T. Surappa and
another vs. Sri Satchidhanandendra Saraswathi
Swamiji Public Charitable Trust and others ILR 2008
KAR 2115 in support of his arguments regarding Will
Deed. In the said decision, the executant of Will
Deed was suffering from ill-health and Hon'ble High
Court has made observations about health condition
of testator in para Nos.37 to 40 and clearly observed
in para 40 that, the testator was not in a sound state
of mind as well as physically from 22-1-2003 till his
death on 24-1-2003 at 8.30 a.m., and Will came into
existence at 8.30 a.m., on 21-04-2003 and Hon'ble
High Court has disbelieved the Will. In this case
also, the facts and circumstances are not so different.
Because the alleged Will was executed on 05-09-
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1998. DW.1 admitted in his cross-examination that,
his father was referred to Kalasa Nursing Home,
Chamarajpet and he was taking treatment and one
year before the death of his father, he was suffering
from lungs cancer. Person who was suffering from
lungs cancer and admitted in the hospital and
bedridden cannot be expected to have sound mind to
execute the Will Deed. Even DW.3 admitted in his
cross-examination that, prior to 1998 his father was
admitted in the hospital for lungs cancer treatment
and taking treatment in Cancer Hospital. It creates
doubt about the execution of Will out of love and
affection and with conscious mind of the testator at
the time of execution of Will. Hence, execution of
Will is not proved beyond suspicious circumstances.
So, I hold that, the plaintiff has proved that, the suit
properties are the ancestral joint family properties
and he and defendants No.1 and 2 are in joint
possession and enjoyment of the said properties. So,
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I answered issues No.1 and 2 in the Affirmative and
issue No.3 in the Negative.