Karnataka High Court
Smt. Hanumamma, vs Sri. B.K. Ramaiah, on 23 July, 2021
Author: Aravind Kumar Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.564/2019 (PAR)
BETWEEN:
1. SMT.HANUMAMMA,
W/O BORE GOWDA,
AGED ABOUT 78 YEARS,
R/AT No.17, BAZAAR STREET,
ADUGODI, BENGALURU - 560 030.
SMT. LAKSHMAMMA,
W/O LATE G.NARASAIAH,
SINCE DEAD BY HER LRs.
2. SMT. ANUSUYA, W/O G.SURESH,
D/O LATE LAKSHMAMMA,
AGED ABOUT 58 YEARS,
R/AT No.5, ANJANADRI LAYOUT,
DODDANAGAMANGALA,
HOSA ROAD, BENGALURU - 560 100.
3. SMT. LAKSHMIDEVI.N,
W/O NANJAPPA.R,
D/O LATE LAKSHMAMMA,
AGED ABOUT 56 YEARS,
R/AT No.31/56, 3RD MAIN ROAD,
NANJAPPA BLOCK, K.G.NAGAR,
BENGALURU - 560 019.
2
4. SRI. NAGESH.N, S/O LATE NARASAISH,
S/O LATE LAKSHMAMMA,
AGED ABOUT 51 YEARS,
R/AT No.3, 1ST CROSS,
DEVEGOWDA LAYOUT,
ADUGODI, BENGALURU - 560 030.
5. SMT. NALINI, W/O L.CHANDRAMOULI,
D/O LATE LAKSHMAMMA,
AGED ABOUT 48 YEARS,
R/AT No.63/1, 12TH MAIN,
5TH CROSS, RAGHAVENDRA BLOCK,
SREENAGAR, BENGALURU - 560 050.
6. SMT. B.K.JAYAMMA,
W/O LATE M.V.SRINIVAS,
AGED:70 YEARS,
R.AT Bo.3006, 17TH CROSS,
2ND MAIN, BSK II STAGE,
K.R.ROAD, BENGALURU - 560 070.
7. SMT. B.K.CHANDRAMMA,
W/O LATE GANGADHARAPPA,
AGED ABOUT 65 YEARS,
R/AT No.915, 4TH CROSS,
III STAGE, III PHASE,
III BLOCK, BSK, BENGALURU - 560 085.
8. SMT. B.K.SAVITHRI, W/O H.V.SRIDHAR,
AGED ABOUT 62 YEARS,
R/AT No.54, 1STCROSS,,
80FT. ROAD, BHUVANESHWARI NAGAR,
KATTARIGUPPA,
BSK III STAGE, BENGALURU - 560 085.
... APPELLANTS
(BY SRI.A.MADHUSUDHANA RAO, ADV.)
AND:
1. SRI. B.K.RAMAIAH,
S/O LATE KEMPAIAH,
AGED ABOUT 73 YEARS,
3
R/AT No.183, II MAIN,
KORAMANGALA, 1ST BLOCK,
BENGALURU - 560 034.
2. SMT. N.KALPANA,
W/O LATE SRI.SHIVASHANKAR,
AGED ABOUT 58 YEARS,
No.4, GROUND FLOOR,
III MAIN, 5TH BLOCK,
RANGAPPA LAYOUT,
ITTAMADU, BSK III STAGE,
BENGALURU - 560 072. ... RESPONDENTS
(BY SRI. P.N.MANMOHAN, ADV., FOR R-1 & R-2;
R-3 IS SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED SECTION 96 OF THE CPC. AGAINST
THE JUDGMENT AND DECREE DATED 20.12.2018 PASSED IN
O.S.No.1721/2005 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
SANJAY GOWDA, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the plaintiffs who are aggrieved by
dismissal of their suit O.S.No.1721/2005 in which they had
sought for partition of two agricultural properties and herein
after referred to as Schedule 'A' and 'B' properties.
2. For the sake of convenience, the parties are referred to by
their ranks in the Trial Court.
3. The plaintiffs are the sisters of defendant No.1, who is
their only brother.
4. The admitted relationship of the parties are as follows:
KEMPAIAH
(DIED ON 23.12.1986)
LINGAMMA (WIFE)
(DIED ON 09.05.1998)
HANUMAMMA LAKSHMAMMA KEMPAMMA JAYAMMMA CHANDRAMMA SAVITHRI RAMAIAH
Plaintiff No.1 Plaintiff No.2 Dead Plaintiff No.3 Plaintiff No.4 Plaintiff No.5 Defendant No.1
(Appelt No.1) Dead (Appelt No.6) (Appelt No.7) (Appelt No.8) (Resp No.1)
Died on
05.05.2021
Anasuya Kalpana
Plaintiff No.2(a) Defendant No.2
(Appelt No.2) (Respt No.2)
Lakshmidevi.N
Plaintiff No.2(b)
(Appelt No.3)
Nagesh.N
Plaintiff No.2(c)
(Appelt No.4)
Nalini.N
Plaintiff No.2(d)
(Appelt No.5)
Shakunthala
Defendant No.3
(Respt. No.3)
5. Plaintiffs, the five daughters of Kempaiah, namely
Hanumamma (plaintiff No.1), Lakshmamma (plaintiff No.2),
Jayamma (plaintiff No.3), Chandramma (plaintiff No.4) and
Savithri (plaintiff No.5) initially filed the suit against their
brother B.K.Ramaiah (defendant No.1) seeking for partition of
two agricultural properties. Subsequently, Kalpana (daughter of
Kempamma, the third daughter of Kempaiah) was impleaded as
defendant No.2.
6. Since Lakshmamma, the second daughter of Kempaiah
died during the pendency of the suit, her children came to be
impleaded as plaintiffs 2 (a) to (d). Lakshmamma's another
daughter Shakuntala was impleaded as defendant No.3.
7. The plaintiffs stated that they are the daughters of Late
Kempaiah and Lingamma and Defendant No.1, their brother,
was the only son of late Kempaiah and Lingamma. They stated
that all of them together constituted a joint Hindu family. The
plaintiffs further stated that their father, Kempaiah, during his
life time, had settled all the properties in favour of the plaintiffs
and defendant No. 1 and everyone had taken their respective
shares and were enjoying the same.
8. They stated that their father Kempaiah had executed a
registered Will dated 22.02.1984 bequeathing two properties
i.e., a house property in Chinnayyanapalya where he was
residing and an agricultural property bearing Sy.No.45/12
measuring 4 acres situated in Parappana Agrahara (schedule-A
property), in favour of their mother Lingamma. It was stated
that Lingamma after the demise of Kempaiah enjoyed the
properties as an absolute owner and she thereafter settled the
house property in favour of Jayamma (plaintiff No.3) and
Savithri (plaintiff No.5) under a registered Partition Deed dated
02.02.1989.
9. They stated that under aforesaid Partition, Lingamma
chose to retain the property measuring 4 acres (schedule-A
property) for herself and Lingamma had thereafter executed a
registered Will dated 16.01.1998 whereby she bequeathed
schedule-A property in favour of both the plaintiffs and
defendant No.1 equally. They, thus, stated that all the children
of Kempaiah have equal share in schedule-A property.
10. They stated that on the death of Lingamma on
09.05.1998, all of them had succeeded to the property of
Lingamma in equal proportions. It was also stated that the
plaintiffs' request to their brother defendant No.1 to divide
schedule-A property equally was not acceded to and on the
other hand, he had proceeded to make an application to the
revenue department for mutating katha in his individual name
and had also got the revenue entries made over to his name by
furnishing false information. It was further stated that on the
basis of said revenue entries, he was trying to dispose of
schedule-A property so as to deprive the legitimate share of the
plaintiffs.
11. A further plea was raised by the plaintiffs that Kempaiah
during his life time had acquired another property bearing
Sy.No.45/18 measuring 4 acres situated at Parappana
Agrahara under a registered Sale Deed dated 31.01.1985
(schedule-B property) and on his demise intestate plaintiffs and
defendant had succeeded to Schedule 'B' property and as such
plaintiffs were therefore entitled to an equal share in schedule-
'B' property.
12. It was stated that plaintiffs had approached the revenue
authorities to get the entries changed in their names, but were
informed that their names could not be entered as mutation
had already been effected in favour of defendant No.1 and
therefore the only remedy to them was to approach the
competent Civil Court.
13. It was stated that defendant No.1 refused to heed to the
advice of elders and well-wishers to effect partition and they
refused to give any share to the plaintiffs and therefore,
plaintiffs had no other option, but to file the suit for partition
and separate possession in Schedule 'A' and 'B' properties.
14. Defendant No.1 entered appearance and contested the
suit by filing written statement. It was admitted by him that his
father Kempaiah during his lifetime had settled all the
properties in favour of the plaintiffs and defendant and
everyone had taken their respective shares and were enjoying
the same. He stated that in the light of this admitted position,
question of plaintiffs seeking for partition would not arise.
15. Defendant No.1 denied the execution of both the
registered Partition Deed dated 02.02.1989 and also the Will
dated 16.01.1998 executed by his mother Lingamma.
16. Defendant No.1 put forth the plea that his father
Kempaiah, who had bequeathed the house property and
schedule-A property in favour of his mother Lingamma, but had
subsequently cancelled the said Will as it did not reflect his
desire and he proceeded to execute another Will dated
10.03.1985, by which, he bequeathed schedule-A and B
properties in his favour.
17. He stated that after his father Kempaiah died, plaintiff
Nos.3 and 5 had created the Partition Deed dated 02.02.1989 to
get over the Will dated 10.03.1985 executed by his father. He
stated that since his father's earlier Will dated 22.02.1984 had
been cancelled by execution of the Will dated 10.03.1985, his
mother Lingamma had no right to either partition the properties
under the Partition Deed dated 02.02.1989 or bequeath
Schedule 'A' property under the Will dated 16.01.1998. He
stated that the Partition Deed as well as the said Will were both
created at the instance of M.V.Srinivas, the husband of plaintiff
No.3 with the sole objective of harassing him.
18. He stated that plaintiff No.5, based on the Partition Deed
dated 02.02.1989, had sold the property allotted to her to one
G. Arun Kumar under Sale Deed dated 26.06.2002 for an
actual sale consideration of Rs.14,50,000/-, though the sale
consideration stated in the Sale Deed was only Rs.5,00,000/-.
19. He stated that marriages of all his sisters except plaintiff
No.5 had been celebrated during the lifetime of his father
Kempaiah and as a matter of fact, all daughters had also been
provided with immovable properties or assisted in procuring the
same.
20. He stated that plaintiff No.1 was given a house in
Audugodi which had been purchased by Kempaiah in the name
of his wife Lingamma under registered Settlement Deed dated
23.03.1977.
21. He stated that plaintiff No.2 was extended financial
assistance when she had constructed a house in Audugodi.
22. He stated that the third daughter of Kempaiah i.e.,
Kempamma (mother of defendant No.2 - Kalpana) had lost her
husband within a year of her marriage and had returned to his
house along with her only daughter Kalpana (defendant No.2)
and the said Kempamma was given a site in RPC Layout,
Vijaynagar, Bengaluru.
23. He stated that Kempamma passed away on 11.10.1992
leaving behind defendant No.2 as her only legal heir and she
had not been made a party to the suit and therefore, the suit
was bad for non-joinder of necessary parties.
24. He stated that plaintiff No.3, Jayamma, was also extended
financial assistance when she constructed a house at
Hanumanthanagar, Bengaluru and she had also been given a
portion of father's house at Chinnayyanapalya under the
alleged Partition Deed 02.02.1989.
25. He stated that plaintiff No.4, Chandramma, was provided
a site at Koramangala, Bengaluru.
26. He stated that plaintiff No.5, Savithri, apart from getting
financial assistance from him and his father Kempaiah to
purchase jewelleries, had also got a portion of his father's house
at Chinnayyanapalya under the alleged Partition Deed
02.02.1989 and she had sold the same for a sum of
Rs.14,50,000/-.
27. He submitted that plaintiffs and his niece Kalpana
(defendant No.2) were living comfortably with their respective
families.
28. He stated that his father Kempaiah was living with him till
his death and he was looking after him with love and affection.
He stated that he had helped his father in acquiring
agricultural properties and therefore, his father had cancelled
his previous Will dated 22.02.1984 and executed another Will
dated 10.03.1985 whereby he bequeathed the house property in
favour of his mother and the agricultural properties (schedule -
A and B) in his favour.
29. He submitted that on the death of his father, he had
become the absolute owner by virtue of the bequest and had
continued in possession as such. He stated that he had
developed schedule-A and B properties and transformed a dry
land into a garden land by investing huge sums of his own
money and also by raising loans. He stated that by expending
money and labour, he had transformed the barren piece of land
into a valuable yielding land. It was stated that the plaintiffs
were trying to lay a claim over the suit schedule properties only
to harass him.
30. The daughter of Kempamma i.e., Kalpana who was
subsequently impleaded as defendant No.2, filed a written
statement supporting the case of defendant No.1.
31. The Trial Court, on consideration of pleadings framed
seven issues as indicated in paragraph 34 infra.
32. Plaintiffs in support of their case examined plaintiff No.5
as PW.1 and also got 5 other witnesses examined. In all, 22
documents were exhibited as Ex. P.1 to P.22 on behalf of the
plaintiffs.
33. Defendant No.1 got himself examined as DW.1 and also
got examined 3 other witnesses in support of his case.
Defendant No.2 got herself examined as DW.5. In all, 105
documents were exhibited as Ex.D.1 to D.105(d) by the
defendants.
34. Trial Court considering the pleadings and evidence
answered the following seven issues framed by it as stated
below. As a consequence to its answer to the issues, it
proceeded to dismiss the suit:
Issue ISSUES ANSWERS
No
1 Whether plaintiffs prove that their father late
Sri.Kemapiah had bequeathed suit schedule 'A' Negative
property in favour of their mother late Smt.
Lingamma by executing a Will Deed dt.22.2.1984?
2 Whether plaintiffs prove that their mother late
Smt.Lingamma had bequeathed suit schedule 'A' Negative
property in their favour and in favour of defendant
by executing a Will deed dt.16.1.1998?
3 Whether defendant proves that their father late
Sri.Kempaiah had cancelled his Will Deed
Affirmative
dt.22.2.1984 and executed another Will Deed
dt.10.3.85 and bequeathed suit schedule 'A' & 'B'
properties in his favour?
4 Whether defendant proves that the suit is bad for
non-joinder of necessary parties?
Affirmative
5 Whether the valuation of the suit made by the
plaintiffs for the purpose of payment of Court Fee is
Negative
proper and the Court fee paid is proper and
sufficient?
6 Whether the plaintiffs are entitled to the reliefs as Negative
sought for?
7 What decree or Order? As per final
order for the
following
reasons:
35. Being aggrieved by the dismissal of the suit, plaintiffs
have preferred this appeal under Section 96 of the CPC.
36. Sri. A. Madhusudhana Rao, learned counsel appearing for
appellants contended as follows:
• Trial Court has seriously erred in coming to the
conclusion that the Will dated 22.02.1984 had not been
proved, when the Will dated 10.03.1985 set up by
defendant No.1 itself contained an admission that
Kempaiah had executed the Will dated 22.02.1984
• He submitted that when once the plea of cancellation of
Will by another Will had been set up, the Trial Court
could not have concluded that the plaintiffs had failed to
prove the execution of the Will dated 22.02.1984.
• The Will dated 10.03.1985 set up by defendant No.1 could
not have been accepted as a genuine Will since the
signature found on the said Will was opined to be a forged
one by the Fingerprint Expert.
• The Will dated 10.03.1985 could not have been accepted
since the attesting witnesses and the scribe of the Will
were all admittedly the friends of defendant No.1 which by
itself proved that the Will had been executed under
suspicious circumstances.
• The Will dated 22.02.1984 executed by Kempaiah granted
liberty to his wife Lingamma to settle the properties in a
manner she thought fit and since Lingamma in her Will
bequeathed the properties to all the children equally, it
would have been held that the Will dated 22.02.1984 was
a genuine Will and the Will dated 10.03.1985 set up by
defendant No.1 which excluded all the daughters ought to
have been disregarded as a Will executed under
suspicious circumstances.
• The circumstances surrounding the execution of the Will
dated 10.03.1985 and the exclusion of legal heirs in the
said Will clearly pointed to the fact that the said Will was
not a genuine Will.
• The fact that the execution of the Will dated 10.03.1985
was not mentioned when the request for mutation was
made and was only inserted subsequently also proved
that the said Will was a forged Will.
• The numerous contradictions of the attesting witnesses
regarding the manner in which the Will was executed also
pointed to the fact that the said Will was not a genuine
Will.
• The alleged consent letter/Will dated 27.01.1987 alleged
to have been executed by Lingamma was not even pleaded
and was brought on record only during the course of
evidence and this by itself proved that defendant No.1 had
been cooking up documents in order to defeat the genuine
claim of the plaintiffs.
• The consent letter dated 27.01.1987 executed by
Lingamma could not have been accepted since she had
herself executed a registered Partition Deed two years
subsequently on 02.02.1989 which itself clearly indicated
that the consent letter was a created document.
• The fact that the Will dated 10.03.1985 set up by
defendant No.1 was not even mentioned in the consent
letter dated 27.01.1987 executed by Lingamma also
proved that the Will dated 10.03.1985 was not genuine.
• The fact that the thumb impression found on the consent
letter could not be ascertained to be the LTM of Lingamma
as it was smudged also indicated that it was a clear case
of forgery.
• When the Will dated 10.03.1985 was opined to be a forged
one and the LTM on consent letter dated 27.01.1987
could not be ascertained to be genuine, the execution of
Will dated 22.02.1984 which was not in dispute, ought to
have been accepted and the suit properties ought to have
been divided equally between the children of Kempaiah.
• He relied upon the following judgments in support of his
case:
CITATION FOR THE PROPOSITION
AIR 1959 SC 443 : H.
VENKATACHALA IYENGAR Vs.
B.N.THIMMAJAMMA AND
OTHERS
1LR 2008 KAR 2115 : SRI
J.T.SURAPPA AND ANOTHER
Vs. SRI
SATCHIDHANANDENDRA Execution of a Will which was surrounded by
SARASWATHI SWAMIJI PUBLIC suspicions circumstances.
CHARITABLE TRUST AND
OTHERS
(2015) 8 SCC 615 : JAGDISH
CHAND SHARMA Vs. NARAIN
SINGHSAINI AND OTHERS
(2010) 5 SCC 770 : First Will stands admitted when it is pleaded
BALATHANDAYUTHAM AND that it was revoked by a subsequent Will.
ANOTHER Vs. EZHILARASAN
(1987) 2 SCC 572 : Property possessed by a Hindu female would
JAGANNATHAN PILLAI Vs. become her absolute property.
KUNJITHAPADAM PILLAI AND
OTHERS
(1990) 1 SCC 440 : HIRAJI
TOLAJI BAGWAN Vs. A partition deed should be construed as a Gift
SHAKUNTALA Deed or a Settlement Deed when given by the
father when he was the absolute owner.
(2018) 3 SCC 117: THEIRY
SANTHANAMAL Vs.
VISWANATHAN AND OTHERS
37. Sri. P.N.Manmohan, learned counsel appearing for
respondent/defendant No.1 contended as follows:
• Plaintiffs themselves had pleaded that the properties of
Kempaiah had been settled in favour of both the plaintiffs
and defendant No.1 during his life time itself and in view
of this very plea it was clear that there had been a
severance and also allotment of all properties and
therefore the question of seeking a partition in the suit
properties would not arise at all and the suit ought to be
dismissed on this ground itself.
• Since the plaintiffs 3 and 5 put forth a specific plea that
they were satisfied with the allotment of house property in
their favour and had clearly stated in the Partition Deed
dated 02.02.1989 to the effect that they would not claim
any right whatsoever in any other property standing in the
name of any other member of the family, the present suit
seeking for partition was wholly untenable and they had
absolutely no right to claim a share in the suit properties.
• As plaintiff No.1 had executed a Settlement Deed after
taking the house property in Audugodi, she could not be
permitted to claim a share once again in the properties of
Kempaiah.
• The fact that there was a settlement in which properties
were allotted to plaintiffs 3 and 5 itself proved that
daughters were given specific properties and they could
not therefore make a fresh claim by the present suit.
• Kempaiah having realized that the Will dated 22.02.1984
did not reflect his actual desire had proceeded to execute
the Will dated 10.03.1985 in which a clear recital was
made that the earlier Will was being cancelled, which by
itself, proved that plaintiffs had obtained the Will
22.02.1984 was under duress.
• The fact that both the attesting witnesses and the scribe
to the Will dated 10.03.1985 had been examined and
these witnesses had clearly stated that they had seen
Kempaiah executing the Will and they had thereafter
attested the signature of Kempaiah had rightly been
accepted by the Trial Court and no fault could be found
with the judgment of the Trial Court.
• The fact that under the Partition Deed dated 02.02.1989,
Lingamma was allotted 4 acres, which was stated in the
deed itself, to be worth Rs.80,000/- while plaintiff No.3
was allotted a house property which was stated in the
deed itself to be worth Rs.1,20,000/- and plaintiff No.5
was also allotted a house property which was stated to be
worth Rs.2,00,000/-, by itself, proved that these two
daughters had cornered a share which was worth 2 ½
times the value of schedule-A property which further
proved that they were basically trying to usurp the best
and most valuable piece of property to themselves thereby
indicating that the case of bequest and subsequent
partition set up by them was a spurious one designed to
cheat other members of the family.
• He submitted that execution of the Will dated 22.02.1984
by Kempaiah in favour of his wife Lingamma and the
subsequent execution of the Partition Deed dated
02.02.1989 and also the Will dated 16.01.1998 by
Lingamma could not be accepted as genuine documents
since the husband of plaintiff No.3, MV Srinivas, was
instrumental in creation of these documents. He
submitted that active involvement of M.V.Srinivas, the
husband of plaintiff No.3, in creation of all the
documents, which ultimately resulted in his wife
becoming a beneficiary, proved without a shadow of doubt
that those documents were executed under suspicious
circumstances.
• The evidence on record clearly indicated that it was the
husband of plaintiff No.3 who had actively participated in
the execution of Will dated 22.02.1984 by Kempaiah,
Partition Deed dated 02.02.1989 and the subsequent Will
dated 16.01.1998 by Lingamma and therefore, it was clear
that an attempt was being made right from 1984 by
plaintiff No.3 to somehow usurp the properties of
Kempaiah.
• The fact that defendant No.1 had virtually paid the entire
sale consideration for acquisition of schedule-B property
had been established by production of a registered
Mortgage Deed, by which 1st defendant's house had been
mortgaged and a sum of Rs.35,000/- had been raised and
the schedule-B property was purchased for a sum of
Rs.40,000/- at about the same time. He submitted that
these contemporaneous event clearly established that
schedule-B property was purchased entirely by the 1st
defendant's contribution and the Will executed in his
favour had basically acknowledged this fact.
• The fact that revenue entries were changed in the year
1987 itself and the documentary evidence produced to
establish that huge sums of money had been expended
from 1987 till 2005 on improving the schedule properties
clearly established that the Will dated 10.03.1985 had
been all along accepted by the plaintiffs.
• The fact that the suit was filed in the year 2005 i.e.,
nearly two decades after Kempaiah died by itself indicated
that the claim was a speculative claim.
• Reliance placed on the report of the Fingerprint Expert
was wholly misconceived since the said expert witness has
not taken into consideration the fact that Kempaiah was
illiterate and his signature could not be possibly
consistent.
• The fact that even as per the suggestion made to the
defendant's witness that Kempaiah's hands were shaking
for nearly two years prior to his death was not even
considered by the expert witness in the background of the
fact that the report stated that the signature of Kempaiah
was smooth and natural, had completely vitiated the
evidence and also his report.
• He relied upon the following judgments in support of his
contentions:
CITATION FOR THE PROPOSITION
AIR 1964 SC 529 : SHASHI
KUMAR BANERJEE Vs.
SUBODH KUMAR BANERJEE
(2019) 14 SCC 220 :
CHENNADI JALAPATHI
REDDY Vs. BADDAM
PRATAPA REDDY &
ANOTHER
EVIDENTIARY VALUE OF AN
(1963) 3 SCR 722 : PANDIT EXPERT'S OPINION
ISHWARI PRASAD MISRA Vs.
MOHAMMAD ISA
(2016) 4 SCC 571 : PREM
SAGAR MANCOHA Vs. STATE
(NCT OF DELHI)
(2010) 6 SCC 1 : SIDHARTHA
VASHISHT Vs. STATE (NCT
OF DELHI)
(1982) 1 SCC 20 : INDU BALA
BOSE AND OTHERS Vs.
MANINDRA CHANDRA BOSE
AND OTHERS.,
(1995) 5 SCC 215 :
VRINDAVANIBAI SAMBAJI PROOF OF WILL AND SUSPICIOUS
MANE Vs. RAMACHANDRA CIRCUMSTANCES
VITHAL GANESHKAR AND
OTHERS.,
(2004) 2 SCC 321 : UMA
DEVI NAMBIAR AND
OTHERS Vs. T.C. SIDHAN
AIR 1962 SC 567 : RANI
PURNIMA DEVI AND
MERE REGISTRATION OF WILL DID
ANOTHER Vs. KUMAR
NOT PROVE ITS DUE EXECUTION
KHAGENDRA NARAYAN DEV
AND ANOTHER
(1987) 2 SCC 555 : RAM
SARUP GUPTA Vs. BISHUN
NARAIN INTER COLLEGE
PLEADINGS AND ITS EFFECT ON THE
AIR 1996 SC 735: BHAGWATI CASE
PRASAD Vs. CHANDRAMAUL
(2013) 2 SCC 606: GIAN
CHAND AND BROS Vs.
RATTAN LAL
(1994) 4 SCC 294 : REGARDING PARTIAL PARTITION
KENCHEGOWDA Vs.
SIDDEGOWDA
(1974) 3 SCC 680 : SRI
HARASINGH CHARAN
REGARDING SCOPE OF
MOHANTY Vs. SH.
INTERFERENCE IN AN APPEAL
SURENDRA MOHANTY
38. After hearing the Learned Counsel appearing for parties
and considering entire records of the trial court, in our view,
the point that arises for determination in this appeal is:
Whether the Trial Court was justified in
concluding that the Will dated 10.03.1985 (Ex.D-
105) was the last Will of Kempaiah and by this
Will, whether his earlier Will dated 22.02.1984
(Ex.P-17) was cancelled?
OR
Whether the judgment and decree passed by the
trial court dismissing the suit is liable to be
interfered on account of erroneous appreciation
of evidence or non-consideration of available
evidence in its proper perspective ? or deserves
to be affirmed.
DISCUSSION AND FINDING:
39. This suit is an outcome of a bitter battle between seven
siblings. The plaintiffs are five sisters pitted against their only
brother (defendant No.1) and their niece (their deceased sister's
daughter) who supported their brother.
40. It is the case of five sisters that their father Kempaiah had
by a registered Will dated 22.02.1984 (Ex.P-17) bequeathed
schedule-A property, an agricultural property measuring 4
acres, which he had purchased on 01.02.1957 (Ex.D-1) along
with a house property, to his wife Lingamma namely their
mother, reserving liberty to her to deal with the said property in
any manner she deemed fit, including dividing it amongst her
children.
41. It is their further case that on the death of their father on
23.12.1986, their mother succeeded not only to the agricultural
property measuring 4 acres (schedule A property) but also to
the house property and thereafter, their mother by way of a
registered Partition Deed dated 02.02.1989 (Ex.P-1), settled the
house property in favour of plaintiffs 3 and 5 in two portions
and had retained the schedule-A property for herself.
42. It is their further case that their mother, Lingamma,
nearly a decade thereafter, had executed a registered Will dated
16.01.1998 (Ex.P-16) whereby she bequeathed schedule-A
property, that is the property measuring 4 acres, in favour of all
her children equally.
43. They contend that on the death of Lingamma on
09.05.1998, the bequest came into effect and they had
succeeded to schedule-A property jointly and equally and all of
them were thus entitled to an equal share.
44. They also contend that their father, after executing the
registered Will dated 22.02.1984, had purchased schedule-B
property on 31.01.1985 and he had not executed any testament
in respect of said property. It was their case that on their
father's death on 23.12.1986, they had succeeded to schedule-
'B' property by way of intestate succession and were entitled to
equal share in Schedule 'B' property also.
45. Thus, five daughters (plaintiffs) contend that they had
succeeded to schedule-A property by way of a bequest from
their mother and they had inherited schedule-B property from
their father by way of intestate succession.
46. The sole brother of the plaintiffs (defendant No.1), on the
other hand, contended that he was instrumental in the
acquisition of schedule-B property and his father realising that
the bequest made by him on 22.02.1984 was not reflecting his
actual desire had cancelled that Will and had executed another
Will dated 10.03.1985 (Ex.D-105). He stated that under this
Will, his father while cancelling his earlier Will dated
22.02.1984, had proceeded to bequeath both schedule-A and
schedule-B properties to him. He stated that earlier bequest of
the house property to his mother was restated and affirmed by
his father in this will.
47. In other words, in respect of Schedule A property, the
sisters set up a Will of 1984 executed by their father in favour
of their mother and also set up a subsequent Will of the year
1998 executed by their mother whereby she had bequeathed
schedule-A property in favour of plaintiffs and defendant No.1
and in respect of Schedule 'B' property, they claimed, by virtue
of plaintiff's and Defendant No.1 being Class I heirs, on their
father's intestate death, they had succeeded in respect of said
property in equal proportion. Their sole brother, defendant
No.1, on the other hand, contends that his father had cancelled
the Will executed in favour of his mother by executing another
Will on 10.03.1985 whereby he bequeathed not only schedule-
A, but also schedule-B property in his favour. He, therefore,
contends that his mother had no right to execute a Will
bequeathing schedule-A property in favour of all her children.
48. The moot question that arises for consideration in this lis
is as to whether all the children succeeded to the suit
properties by virtue of the Will of their mother (in respect of
Schedule A property) and by way of intestate succession (in
respect of Schedule B property) or whether defendant No.1
alone had succeeded to schedule-A and B properties by virtue
of testamentary succession i.e., the Will dated 10.03.1985 of his
father?
49. The answer to this question would hinge on the fact as to
whether the father, Kempaiah, had cancelled his Will dated
22.02.1984 by executing the Will dated 10.03.1985 and had
bequeathed both schedule-A and B properties in favour of
defendant No.1.
50. To put it differently, if defendant No.1 who propounded
the Will dated 10.03.1985, whereby his father had cancelled his
earlier Will dated 22.02.1984, failed to prove it, as a necessary
consequence, the plaintiffs would succeed to the suit properties
on the basis of the Will dated 22.02.1984 executed in favour of
their mother and the subsequent bequest made by their mother
in respect of the suit property in favour of all the children
equally.
51. Before considering this question, it would be beneficial to
summarise the legal position relating to Wills as envisaged
under the Indian Succession Act, 1925 (for short, 'the Act') and
the Indian Evidence Act.
52. A Will is the legal declaration of the intention of the
testator with respect to his property which he desires to be
carried out into effect after his death.
53. A Will can be executed by every sound person who is not a
minor. If the making of the Will or any part of it is caused by
fraud or coercion or if the making of it is clouded by such
importunity so as to take away the free agency of the testator,
the same would be void.
54. A Will may be revoked or altered by the testator at any
time when he is competent to dispose of his property by a Will.
55. As regards the manner in which a Will is to be executed,
Section 63 of the Act mandates three rules that a testator is
required to adhere to.
(i) Firstly, the testator is required to sign or affix
his mark to the Will. A Will can also be signed by
some other person in his presence and in his
direction.
(ii) Secondly, the signature of the testator should
be so placed that it was intended to give effect to
the writing as a Will.
(iii) Thirdly, the Will shall be attested by two or
more witnesses, each of whom has seen the testator
signing the Will.
56. The attesting witnesses are thereafter required to sign the
Will in the presence of the testator, though it is not necessary
that more than one witness be present at the same or any
particular form of attestation be made on the Will.
57. The attesting witnesses would be considered as attesting
witnesses even if they witness the signing of the Will by some
other person in the presence of the testator and under his
direction. They would also be considered to be attesting
witnesses if they receive a personal acknowledgment from the
testator of his signature or mark or of the signature of such
other person who has signed the Will in the presence of the
testator and under his direction.
58. As far as revocation of Will is concerned, as per Section 70
of the Act, a Will shall be revoked on the testator's marriage or
by the execution of another Will or Codicil or by some writing
declaring an intention to revoke the Will, subject to the
condition that the said writing is executed in the same manner
as a Will.
59. A Will can also be revoked by burning or tearing or by
destroying it by the testator or by some person in his presence
and under his direction with the intention to revoke the Will.
60. Thus, a Will stands revoked by execution of another Will
or by some writing which declares the intention of the testator
to revoke the Will. In either of these cases, the new Will or the
writing expressing the declaration to revoke the Will is required
to be executed in the same manner as is required for execution
of a Will i.e., compliance of the three rules envisaged under
Section 63 of the Act.
61. As far as proof of execution of the Will is concerned, since
the Will is a document required to be attested by law, by virtue
of Section 68 of the Indian Evidence Act, a Will is not permitted
to be used as evidence unless at least one attesting witnesses
has been called for the purpose of proving its execution. This
requirement is subject to the condition that the attesting
witness is alive and is subject to the process of the Court and is
also capable of giving evidence.
62. If no attesting witness can be found, it must be proved
that the attestation of one attesting witness at least is in his
handwriting and the signature of the person executing the
document is in the handwriting of that person.
63. It is also settled law that even if the execution of the Will
is proved, the suspicious circumstances, if any, surrounding
the execution of the Will are also required to be removed by the
person who propounds the Will. In fact, this principle of law is
manifested in Section 61 of the Act itself which declares that
any Will obtained by fraud, coercion or importunity is void.
64. It may be pertinent to state here that the Apex Court in
the case of SMT.JASWANTH KAUR Vs. SMT.AMRIT KAUR & OTHERS -
(1977) 1 SCC 369, after referring to the decision rendered in the
case of R.VENKATACHALA IYENGAR Vs. B.N.THIMMAJAMMA - AIR
1959 SC 443 has laid down the following propositions of law:
"1. Stated generally, a will has to be proved like
any other document the test to be applied being the
usual test of the satisfaction of the prudent mind in
such matters. As in the case of proof of other
documents so in the case of proof of wills, one cannot
insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act
requires a will to be attested, it cannot be used as
evidence until, as required by Section 68 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.
3. Unlike other documents, the will speaks from
the death of the testator and therefore the maker of
the will is never available for depositing as to the
circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the
decision of the question whether the document
propounded is proved to be the last will and
testament of the testator. Normally, the onus which
lies on the propounder can be taken to be discharged
on proof of the essential facts which go into the
making of the will.
4. 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
disposing 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.
5. It is in connection with wills, the execution of
which is surrounded by suspicious circumstances
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 called upon to decide a
solemn question and by reason of suspicious
circumstances the court has to be satisfied fully that
the will has been validly executed by the testator.
6. 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."
65. In the light of the above stated legal position, in this
appeal, it will have to be firstly examined as to whether the Will
dated 22.02.1984 (Ex.P-17) executed by Kempaiah was revoked
by his subsequent Will dated 10.03.1985 and whether it was
duly executed and duly proved in the manner prescribed by law
and Secondly, it will have to be examined whether the execution
of the Will dated 10.03.1985 was surrounded by any suspicious
circumstances.
66. The Will dated 10.03.1985 (Ex.D-105) starts with a recital
that the testator was cancelling his earlier Will dated
22.02.1984. Thus, the question that the Will dated 22.02.1984
was revoked by the Will dated 10.03.1985 is clear and it cannot
be in doubt at all.
67. A further consequence of this recital in the Will dated
10.03.1985 that the earlier Will dated 22.02.1984 was being
cancelled would be that the earlier Will dated 22.02.1984 is not
only admitted but it also stands proved. We say so in view of
the pronunciation of the Apex Court in the case of
BALATHANDAYUTHAM AND ANOTHER Vs. EZHILARASAN - (2010) 5
SCC 770, in which, it is stated as follows:
"On these facts the learned first appellate court
held that when the execution of a will asserted by one
party is denied by the other party, then the burden is on
the party who relies on the will to prove its execution.
But when the execution of the will is not denied then no
burden is cast on the party who relies on a will to prove
its execution. Relying on the aforesaid principle, the first
appellate court held, and in our view rightly, that the
existence of the first will dated 25.09.1972 has been
admitted."
68. However, that would not lead to an inference that the
execution of the Will dated 10.03.1985 would also stand
proved. In law, the propounder of this Will, i.e., B.K.Ramaiah,
defendant No.1, would still be required to prove the valid
execution of the Will and also establish that its execution was
not surrounded by any suspicious circumstances.
69. In order to prove the execution of the Will dated
10.03.1985, the scribe T.Ramakrishne Gowda and both the
attesting witnesses V.Krishnamurthy and P.Anand were
examined as DW-2, DW-3 and DW-4 respectively.
70. The scribe T.Ramakrishne Gowda stated on oath that he
knew the plaintiffs, defendants and their family members since
a long time and that he also knew Kempaiah and Lingamma
and he was in the habit of visiting them now and then. He has
stated that during one such visit, Kempaiah had requested him
to draft a Will and as per his instructions, he drafted the Will
on 10.03.1985, read out the contents of the Will to Kempaiah,
who after carefully listening to it and being satisfied about the
contents, had signed the Will in his presence. He has stated
that thereafter, V.Krishnamurthy and P.Anand, who were
present during the entire period had also affixed their
signatures to the Will as attesting witnesses.
71. The attesting witnesses, V.Krishnamurthy and P.Anand,
have also deposed that they had seen Kempaiah executing the
Will and they had affixed their signature after seeing Kempaiah
sign the Will.
72. Thus, the scribe and the two attesting witnesses have
stated that the Will was drafted in the presence of Kempaiah
and Kempaiah only after being satisfied about the contents of
the will had affixed his signature to the Will and the attesting
witnesses had affixed their signatures thereafter. This clear
evidence, according to the learned counsel appearing for the
respondent, Sri. Manmohan, was complete proof of the
execution of the Will.
73. However, learned counsel for the appellants,
Sri. A.Madhusudhana Rao contended that the signature of the
testator had been denied and the said signature was referred to
a handwriting expert, who after a detailed scientific
examination had opined that the signature on the Will was
forged and therefore it had been established beyond doubt that
the Will dated 10.03.1985 was not the Will of Kempaiah. He
stated that the resultant position of this report was that the
Will dated 10.03.1985 would have to be discarded and earlier
Will dated 22.02.1984, which was not in dispute, would have to
be considered as the last Will of Kempaiah.
74. Learned counsel also contended that both the attesting
witnesses and the scribe were, admittedly, close friends of
defendant No.1 and their evidence wherein they admitted this
suggestion only reinforced the fact that the Will was a forged
Will and could not be therefore accepted. He submitted that
even according to the scribe, a draft Will had already been
prepared and on seeing the same and noting down the
instructions of Kempaiah, he had prepared the Will. However,
since this draft Will was not produced before the Court, it
would therefore have to be assumed that a false story was being
narrated by the scribe.
75. He also submitted that since Lingamma was, as per the
evidence of the scribe and attesting witnesses, present during
the entire process relating to the execution of the Will,
Kempaiah, the testator in the natural course of human
conduct, would have ensured that she also signed as a witness
especially when he was cancelling the earlier Will that he had
executed in her favour. He submitted that since she had not
signed this Will as an attesting witness, it will have to be
assumed that the Will set up by defendant No.1 was a bogus
Will. He submitted if Lingamma was really aware of the Will and
had witnessed the execution of the Will by her husband
Kempaiah, she would not have ventured to execute a Partition
Deed in 1989 and a Will in 1998. It was, therefore, his assertion
that the Will dated 10.03.1985 was a forged and concocted Will.
76. He submitted that there were several contradictions in the
depositions of the scribe and the attesting witnesses and
therefore the Will dated 10.03.1985 ought to be taken as a
concocted Will.
77. At the outset, in order to determine whether the Will dated
10.03.1985 was executed by Kempaiah, the evidence of the
handwriting and document expert - Syed Asgar Imam (PW-6),
who is stated to be an Assistant Director of FSL, Bangalore and
who has opined that the signature of Kempaiah on the Will was
forged, will have to be considered.
78. PW-6 in order to submit his report (Ex.P.22) has
compared the single disputed signature of Kempaiah found on
the Will dated 10.03.1985 with -
a. the two undisputed signatures of Kempaiah found
on the Sale Deed dated 31.01.1985 (by which
schedule-B property had been purchased by
Kempaiah);
b. the four undisputed signatures made by Kempaiah
(on the registered Will dated 22.02.1984) and the
two signatures made by Kempaiah beside his LTM's
on the Will dated 22.02.1984 at the time of
registration of the Will before the Sub-Registrar.
79. On comparison of the undisputed signatures found on the
Sale Deed dated 31.01.1985 and Will dated 22.02.1984 with
the disputed signature found on the Will dated 10.03.1985,
PW-6 stated as follows in his report dated 27.04.2014 (Ex.P-22):
"The admitted signatures marked as
Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3 are
freely and firmly written along with smooth,
clear, rhythmic and uniform quality of
strokes formation.
XXX XXX
XXXXX
it is found that the questioned signature
marked as Ex.D105(B) is not so freely and
firmly writtenas that of the admitted
signatures marked as Ex.D2(a), Ex.P17(b) to
P17(e), S1 to S3, the quality of strokes in
questioned signature marked as Ex.D105(B) is
not so smooth, clear, rhythmic and uniform
as that of in admitted signatures marked as
Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3."
80. In order to appreciate this report, it would be appropriate
to reproduce all the scanned signatures of Kempaiah, which
has been produced by PW-6 and which were compared by HIM
in order to ascertain the genuineness of the signatures and
which are a part of his report.
81. As could be seen from the said scanned image, none of
the nine signatures are similar. Indeed in all the signatures, the
strokes are neither firm nor smooth nor fluid. In each signature
of Kempaiah, the strokes forming each alphabet are
inconsistent. The writing is also halting, indicating that
Kempaiah had an unsteady hand.
82. A person's writing is a result of coordination of many
muscles in the fingers, wrist, forearm and full arm. All of these
parts come into play when a writing is created and only with
constant practice, graphic maturity is reached. On attaining
graphic maturity, writing becomes an automatic act. In other
words, writing becomes a reflex action as a direct consequence
of muscle memory.
83. However, if a person is illiterate or semi-literate, he would
obviously have inadequate practice of writing and would not
have thus reached graphic maturity. In other words, an
illiterate or a semi-literate person would not have acquired the
reflex act of writing i.e., the automatic act of writing. As a
result, even if he were to learn writing the alphabets comprising
his name, one by one to make up his signature, by reason of
insufficient and inadequate practice, the strokes would not be
smooth, consistent and fluid. The net result would be that to
the naked eye, the letters in his signature would be unsteady
and their alignment would be haphazard.
84. It is not in dispute that Kempaiah was not a very literate
person and he was working as an attender in National Dairy
Research Institute. In fact, it is nobody's case that he was
literate and proficient in writing. It is also obvious to the naked
eye that he could barely manage to write his name in Kannada
and the writing of his name was itself his signature.
85. Despite the fact that all the admitted signatures are
inconsistent both in style and in its characteristics and the
signature indicated that it was executed in an halting and a
hesitant manner, the expert has nevertheless opined that the
admitted signatures were "smooth, clear, rhythmic and uniform
quality of strokes formation". In respect of the disputed
signatures, he has opined "it is found that the questioned
signature marked as Ex.D-105 (b) is not so freely and firmly
written".
86. A bare perusal of both the admitted and disputed scanned
signatures extracted above indicate that the writing of
Kempaiah can be described as anything but smooth, rhythmic
and possessing a uniform quality of stroke formation. In fact,
every stroke, in both the disputed and admitted signatures, are
laboured and are riddled with tremors indicating an indefinite
rhythm and an unsteady hand.
87. This basically indicates that Kempaiah had not reached
graphic maturity and his signature/writing had not become an
automatic/reflex act. This was obviously because of his
undisputed illiteracy/semi-literacy. The fact that the expert has
not even considered this fundamental aspect, in our view,
vitiates his entire report and no credence can be attached to the
said report.
88. In the book "Identification of Disputed Documents,
Fingerprints and Ballistics" authored by Russell A. Gregory,
while elaborating on the Individuality of writing, the learned
author has succinctly stated as follows:
"We recognise a person by his face, his figure,
his walk or his talk. We do this, in spite of his
smiling, or being serious, running or standing,
laughing or crying. In each case, the precise
details vary, but the general characteristics are
there, by which we recognise him. So is the case
with a person's handwriting. It is by the study
and analysis of these general characteristics that
the identify of a writing can be established."
89. A hand writing expert is thus required to examine these
characteristics both individually and collectively and thereafter
render his opinion in order to lend credence to the opinion. If
the expert does not compare the admitted and disputed
signatures in relation to the context of the letters found in the
signatures with reference to their relative size, positioning,
spacing and slant of the letters and also the alignment and
shape of letters, the opinion rendered by him cannot be
considered as an expert opinion worthy of acceptance.
90. In the instant case, the signature of Kempaiah contained
just five letters. The expert ought to have compared each of the
letters and evaluated each of the five letters with reference to
the above mentioned characteristics and then rendered an
opinion based on the similarities or dissimilarities found in the
characteristics of the letters. However, the expert has in his
report stated as follows:
"The admitted signatures marked as Ex.D2(a),
Ex.P17(b) to P17(e),S1 to S3 are freely and firmly
written along with smooth, clear, rhythmic and
uniform quality of strokes formation. These
admitted signatures are showing internal
consistency in writing habits and possess natural
variations between them without any differences
in basic writing habits and they are found written
by one and the same person in normal form of
executions.
On examination of the admitted signatures
marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3
on one hand and the questioned signature
marked as Ex.D105(B) on the other, it is found
that the questioned signature marked as
Ex.D105(B) is not so freely and firmly written as
that of the admitted signatures marked as
Ex.D2(a), Ex.O17(b) to P17(e), S1 to S3, the
quality of strokes in questioned signature marked
as Ex.D105(B) is not so smooth, clear, rhythmic
and uniform as that of in admitted signatures
marked as Ex.D2(a), Ex.P17(b) to P17(e), S1 to S3.
Study of line quality in questioned signature
marked as Ex.D105(B) exhibits slow and copied
movement of operation in its execution along with
unnatural, un-rhythmic & hesitant quality of
strokes formation in association with unequal pen
pressure, defective and bad line quality of strokes
formation, which are all the characteristics of the
act of imitation forgery. In addition, the
questioned signature marked as Ex.D105(B) is
also showing significant divergences with that of
the admitted signatures marked as Ex.D2(A),
Ex.P17(b) to P17(e), S1 to S3 in the minute and
inconspicuous details of the execution of
characters "PÉ. A, ¥À, AiÀÄ & half AiÀÄ" with respect to
nature and movement of their commencement,
shape and movement in formation of their body
strokes, movement in combination and
termination of strokes, nature and direction of
finishing strokes, as found in admitted signatures
are found divergent in questioned signatures with
different commencement, movement, shape,
formation and finish, freedom of movement,
writing skill, speed, rhythm and quality of strokes
formation.
The divergences in writing habits which
observed in questioned signature marked as
Ex.D105(B) with that of the admitted signatures
marked as Ex.D2(A), Ex.P17(B) to P17(e), S1 to S3
are fundamental in nature and they are beyond
the range of natural variations and intended
disguise and when they are considered collectively
in combination with the defective and bad line
quality of questioned signatures, they lead me to
venture the negative authorship of questioned
signature marked as Ex.D105(B).
The questioned signature marked as Ex.D105(B)
is the product of freehand imitation forgery
produced in order to match the pictorial
appearance of admitted signatures.
91. As could be seen from the aforesaid opinion, PW-6, the
expert has merely made general and sweeping remarks on the
signatures instead of specifically evaluating each word of the
signature in the context of their similarities or dissimilarities. In
our view, the opinion of the expert is more of a general
commentary than a critical evaluation of each of the signatures
and it would not therefore be prudent, on the basis of this
expert opinion, to record a finding that the disputed signature
was the product of freehand imitation forgery.
92. In fact, the expert witness in the course of cross-
examination has stated that the signature found on Ex.D-105
was that of a literate person, while such a conclusion is not
even hinted in his report.
93. If one were to take into consideration that all of the six
signatures of Kempaiah executed at the same time on
22.02.1984 on the Will dated 22.02.1984 (Ex.P-17) and the two
signatures of Kempaiah which were found on the Sale Deed
dated 31.01.1985 (Ex.D-2) differed to a very large extent both in
terms of style, uniformity, alignment and shape of the letters,
the only logical inference that can be gathered would be that
Kempaiah's signature was consistently inconsistent. The
deduction that would follow from this is that the inconsistency
was the hall mark of his signatures. The inconsistency in the
signatures of Kempaiah cannot, however, by itself lead to the
conclusion that they were forged.
94. It may also be pertinent to state here that the plaintiffs,
while cross-examining the attesting witnesses to the Will dated
10.03.1985 (Ex.D-105) have clearly suggested as follows:
"It is false to suggest that at the time of writing,
the hands of late Sri. Kempaiah were shaking.
It is false to suggest that since 2 years
earlier to the date of his death the hands of late
Sri.Kempaiah were shaking, and he was not in a
position to sign."
95. This suggestion made by plaintiffs, by itself, proves that
Kempaiah did not have a steady hand and therefore the
question of expecting a consistent signature from him would
not arise. This aspect of Kempaiah's state of health is also not
indicated by the expert in his evidence. The expert, on the other
hand, as noticed earlier, has stated that Kempaiah's admitted
signatures in 1984 and 1985 (i.e., two years before his death in
1986) "are smooth, clear, rhythmic had a uniform quality of
strokes formation" which would be patently erroneous. We are,
therefore, inclined to arrive at the conclusion that the opinion of
the handwriting expert - PW-6 does not have credibility meriting
its acceptance.
96. The Trial Court, in its judgment, has reasoned as follows
regarding the evidence of the expert:
"The opinion given by PW6 marked as Ex.P22.
But here on perusing the cross-examination of
PW6, he failed to observe and mention the skill
of signatures on Ex.S1 and S2 and also
Ex.D105(b) are good or poor. In the cross-
examination of PW6, he admitted that he has
not mentioned the skill of disputed and admitted
signatures of late Kempaiah in his opinion on
ExP.22, because mere statement that the skill is
not same which is claimed to be mentioned in
the report is not meeting up to the scientific
standards of the Handwriting examination
report. Further in the cross-examination of PW6,
he clearly admitted that he failed to mention the
important handwriting characteristics including
the movement of writing. So here on Ex.P17(b),
PW6 has partially reported in his report by
selecting the signature of late Kempaiah on
Ex.P17. Therefore there is natural variation as
observed in the disputed signature which the
expert has failed to notice and wrongly reported
in his report marked as Ex.P22. PW6 utterly
failed to depose whether signature on Ex.D105
and Ex.P17 made by a person who is literate or
illiterate. Therefore theory on which PW6 relied
is totally contrary to the report submitted by
him. The cross-examination of PW6, goes to
show that he has not mentioned the basic
character of writing of a person like speed and
rhythm.
The cross-examination of PW6 goes to show
that he intentionally denied to comment on the
characteristics of illiterate signatures. PW6
claims to have read the material in Albert
Osborn's book related to illiterate signatory but
has completely failed to understand which is the
root cause of misleading conclusion. Further
PW6 claims that unequal pen pressure is the
characteristic of a forged signature, but the pen
pressure cannot equal in a genuine signature
and the same is called as graduated pen
pressure. So here PW6 by applying his own
theory has erred and deviated from the standard
practice of handwriting examination profession."
97. In our view, the above reasoning of the Trial Court on this
aspect is not only valid and correct, but also apt in the facts
and circumstances of the case and deserves acceptance.
98. As regards the evidentiary value of an opinion by an
expert, a 3 judge bench of the Apex Court in the case of
Chennadi Jalapathi reddy vs Baddam Pratappa Reddy (ded)
through LRs (2019) 14 SCC 220 has held as follows:
"10. By now, 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. In this respect,
reference may be made to a long line of
precedents that includes Ram Chandra v. Ram
Bharosey v. State of UP, AIR 1957 SC 381, Shashi
Kumar Banerjee v. Subodh Kumar Banerjee, AIR
1964 SC 529, Magan Bihari Lal v. State of Punjab,
(1977) 2 SCC 210, and S. Gopal Reddy v. State of
A.P, (1996) 4 SCC 596.
11. We may particularly refer to the decision
of the Constitution Bench of this Court in Shashi
Kumar Banerjee (supra), where it was observed
that the evidence of a handwriting expert can
rarely be given precedence over substantive
evidence. In the said case, the Court chose to
disregard the testimony of the handwriting expert
as to the disputed signature of the testator of a
Will, finding such evidence to be inconclusive. The
Court instead relied on the clear testimony of the
two attesting witnesses as well as the
circumstances surrounding the execution of the
Will.
12. On the other hand, in Murari Lal v. State
of Madhya Pradesh, (1980) 1 SCC 704, this Court
emphasised that reliance on expert testimony
cannot be precluded merely because it is not
corroborated by independent evidence, though the
Court must still approach such evidence with
caution and determine its creditworthiness after
considering all other relevant evidence. After
examining the decisions referred to supra, the
Court was of the opinion that these decisions
merely laid down a rule of caution, and there is no
legal rule that mandates corroboration of the
opinion evidence of a handwriting expert. At the
same time, the Court noted that Section 46 of the
Evidence Act, 1872 (hereinafter "the Evidence
Act") expressly makes opinion evidence open to
challenge on facts. In Alamgir v. State (NCT, Delhi),
(2003) 1 SCC 21, without referring to Section 46 of
the Evidence Act, this Court reiterated the
observations in Murari Lal (supra) and stressed
that the Court must exercise due care and
caution while determining the creditworthiness of
expert evidence.
13. In our considered opinion, the decisions
in Murari Lal (supra) and Alamgir (supra)
strengthen the proposition that it is the duty of
the Court to approach opinion evidence cautiously
while determining its reliability and that the Court
may seek independent corroboration of such
evidence as a general rule of prudence. Clearly,
these observations in Murari Lal (supra) and
Alamgir (supra) do not go against the proposition
stated in Shashi Kumar Banerjee (supra) that the
evidence of a handwriting expert should rarely be
given precedence over substantive evidence."
99. In the light of this enunciation of law, it will have to be
held that it is a well settled proposition of law that the opinion
of an expert witness is not binding on the Courts and the
Courts possess the freedom to disregard the opinion if it is not
credible or reliable.
100. Apart from the above, for more than one reason, we are
satisfied that the Will dated 10.03.1985 (Ex.D-105) cannot be
disregarded as being forged.
101. The two attesting witnesses to the Will dated 10.03.1985
i.e., V.Krishnamurthy and P.Anand have been examined as
DW-3 and DW-4 respectively and the scribe T.Ramakrishne
Gowda has been examined DW-2. The scribe has stated that he
was instructed by Kempaiah to write the will in the presence of
the witnesses and he had accordingly drafted the will. The
attesting witnesses have deposed that Kempaiah had requested
them to come over and in their presence, Kempaiah had given
instructions to draft the will and the will was drafted. They have
also stated that after the will was read over, Kempaiah being
satisfied about its contents signed the will and thereafter they
had affixed their signatures as attesting to the factum of the
execution of the will by Kempaiah. Thus, the animus attestandi"
i.e., the intent to attest, an essential attribute of the witnesses
was not only present but has also been clearly established and
the execution of the will would therefore have to be held as duly
proved.
102. The attesting witnesses and the scribe have also stated
they knew Kempaiah since long time and they have also
exhibited clear knowledge of Kempaiah's children, his
properties and his avocation thereby indicating they were
acquainted with him.
103. Learned counsel for the appellants/plaintiffs, however,
took great pains to highlight the fact that the attesting
witnesses and the scribe of Ex.D-105 were good friends of the
1st defendant and therefore their evidence had no credibility. It
is to be stated here that even if the scribe and the attesting
witnesses were the friends of defendant No.1, that single factor
would not render the Will either suspicious or doubtful. The
scribe of the Will dated 10.03.1985 (Ex.D-105) was an Engineer
in the PWD and it is quite probable that defendant No.1 who
was working as an Engineer in Bangalore Diary was his friend.
However, that, by itself, would not render the execution of the
said Will, doubtful.
104. It is to be noted here that at the time of execution of Will
dated 10.03.1985 (Ex.D-105), five of the six daughters of
Kempaiah had already been married and 5th plaintiff alone was
yet to be married. In the Will, it was not only stated clearly that
Kempaiah had provided enough funds for her marriage, but it
has also been stated that he was bequeathing his house to his
wife. Thus, Kempaiah under the Will was ensuring that the
requirement of his only unmarried daughter and his wife were
safeguarded adequately.
105. It should also be borne in mind that way back in 1977
itself, under the Settlement Deed dated 23.03.1977 (Ex.D-79), a
house in Audugodi was settled in favour of plaintiff No.1. In the
plaint at paragraph 3, the plaintiffs have themselves stated as
follows:
"3. The plaintiffs and the Defendants
are the daughters and son of late Kempaiah
and they constitute a Joint Hindu family.
During the life-time of father of the Plaintiffs
and the defendant late Kempaiah, he had
settled all the properties in favour of the
plaintiffs and the defendant and accordingly,
every-one has taken their respective shares
and enjoying the same."
106. This statement has been reiterated in the affidavit
submitted in lieu of evidence of plaintiff No.5. Thus, even
according to the plaintiffs, Kempaiah had provided properties
for all his children during his life time itself, it cannot be
therefore contended that Will dated 10.03.1985 was suspicious
only because it had excluded his other legal heirs.
107. It is to be noted here that Kempaiah had executed his first
Will on 22.02.1984 (Ex.P-17) whereby he bequeathed schedule-
A property and his house to his wife Lingamma. However, after
the said Will was executed, he had purchased schedule-B
property for a sum of Rs.40,000/- under a registered Sale Deed
dated 31.01.1985 (Ex.D-2). This schedule property was an
agricultural land abutting schedule-A property. At the time of
this purchase, Kempaiah was aged about 70 years and had
thus been retired for at least a decade or more. It is to be noted
here that plaintiff No.5 admitted during her cross-examination
as follows:
"In the year 1985 myself, my father and D-1
were residing jointly. It is true to suggest that in
the year 1985, D-1 was in service. I don't know if
D-1 joined service in the year 1971."
108. Thus, when schedule-'B' property was acquired on
31.01.1985, Kempaiah had retired from his post of attender
and by then, five out of his six daughters were already married
and he was living with his only son, who was employed as an
Engineer in Bangalore Dairy along with his wife and the then
unmarried plaintiff No.5. From these set of admitted facts, it
can easily be deduced that Kempaiah's financial resources,
given his advanced age and long retired life, would be rather
limited. The possibility therefore that he was capable of
acquiring schedule-'B' property for Rs.40,000/- on his own
would not only be rather slim but also unrealistic.
109. In fact, defendant No.1 has put forth the plea that
schedule-B property was acquired with his financial assistance.
In order to support this plea, DW-1 has produced a registered
Mortgage Deed dated 28.02.1985 (Ex.D-104) whereby he has
mortgaged his residential house constructed on a plot of 4000
square feet in Koramangala Layout for a sum of Rs.35,000/-.
110. A few things can be deciphered from this mortgage of the
residential property of defendant No.1.
111. Firstly, as on 1985, Ramaiah-DW-1, the only son of
Kempaiah had already acquired a house property measuring
4000 square feet in Koramangala, a relatively affluent locality in
Bangalore and was residing there not only with his father,
mother, unmarried daughter but also his widowed sister and
her only daughter along with his wife. This indicated that he
possessed not only adequate financial resources but was also
capable of financing the acquisition of schedule-B property.
112. Secondly, Kempaiah had retired as an Attender in 1971-
72 itself and he was residing with his son along with his wife,
his widowed daughter and an unmarried daughter. He had also
by that time, admittedly got all but one of his daughters
married. He had also admittedly settled one house property in
favour of one of his daughters. Given the passage of time since
his retirement, the celebrations of all but one of his daughter's
marriage and his advanced age, it would be safe to assume that
his financial strength would most certainly not be strong
enough to acquire schedule-'B' property and no material is
placed by plaintiff's to establish the financial capacity of
Kempaiah during 1985.
113. Thirdly, the proximity of the mortgage on 28.02.1985 of
the 1st defendant's house for a sum of Rs. 35,000/- for
purchase of schedule-'B' property on 31.01.1985 for a sale
consideration of Rs.40,000/-, can only lead to the logical
conclusion that schedule-'B' property was purchased using the
financial resources of defendant No.1 i.e., the mortgage of his
house.
114. The fact that schedule-B property was abutting schedule-
A property and it was being purchased when Kempaiah was
living with defendant No.1, who could not have obviously been
strong financially, would only strengthen the inescapable
conclusion that schedule-B property had been purchased using
the financial resources of defendant No.1.
115. If these set of facts are viewed in their totality and in their
proper perspective, the unmistakable inference that can be
drawn would be that Kempaiah was living with defendant No.1
and they were in cordial terms and he had therefore
volunteered to finance the acquisition of schedule-B property by
mortgaging his own self-acquired residential property.
116. It would also therefore logically and rationally follow that
Kempaiah would have wanted to bequeath schedule-A property,
which he had acquired in 1957 and also the abutting schedule-
B property, which had been purchased using his son's
resources, to his only son i.e., defendant No.1.
117. In order to give effect to this desire, it is quite but natural
and obvious that he had decided to cancel his earlier Will dated
22.02.1984 and bequeath both A and B schedule properties to
his only son.
118. The fact that at the same time and in the very same
bequest, he also safeguarded his wife's interest by reaffirming
the bequest that he had made earlier to his wife of the house
property establishes the normal and rational course of conduct
of Kempaiah. This also reinforces the fact that he was
safeguarding both his wife's and son's interests at the same
time. He was also, by this bequest in favour of his son, ensuring
that his son's gesture of providing financial assistance for
acquiring schedule-B property was reciprocated and his son
was getting the property, for the acquisition of which, he had
made available the necessary finances.
119. The further fact that in Ex.D-105, he has also stated that
he had kept enough funds for the marriage of plaintiff No.5,
only establishes that the conduct of Kempaiah in executing
Ex.D-105 was not only logical but was also rational and clear.
120. The consequent conduct of the sisters after the death of
Kempaiah and Lingamma also indicate that the Will executed
by Kempaiah on 10.03.1985 did reflect his real and genuine
desire regarding the disposition of his properties.
121. Plaintiff No.5, in her cross-examination states as under:
"It is false to suggest that D.1 has developed
the suit property. My father had constructed
houses in suit properties, but I cannot say on
which portion of suit properties my father had
constructed house. After the death of my father
Defendants have not put up any construction in
suit property. I don't know if D.1 had
constructed compound wall surrounding suit
properties. It is true to suggest that after my
marriage I had not seen suit properties. It is
true to suggest that I don't know what type of
trees have been grown in the suit properties and
how many trees are situated in suit properties.
It is false to suggest that D.1 is in exclusive
possession and enjoyment of suit properties as
absolute owner. Except the document produced
by me before court I am not having any other
document to show that we are in possession of
suit properties.
XXXXX
It is true that I have not produced any
documents as to show the plaintiffs and
defendants were in the joint possession and
enjoyment of the suit schedule property. In the
year 1985 both A and B suit property was
standing in the name of my father.
It is true to suggest that katha was not
standing in the name of Lingamma in respect of
A schedule property. It is false to suggest that
in the year 1984 Kempaiah has bequeathed one
house property in the name of Lingamma by
executing another Will. It is true to suggest that
as per partition deed the katha is changed. It is
true to suggest that I have sold out my portion of
the property allotted through the partition deed
Ex.P.1."
122. This evidence of plaintiff No.5, who was unmarried as on
1985 and was living with her father, goes to show that the
plaintiffs were completely unconcerned with schedule A and B
properties. The statement of plaintiff No.5 that she was not
aware on which portion her father had constructed the house
on schedule-A property and she was unaware of the compound
wall constructed around the properties also proves and
indicates that plaintiff No.5 was not interested in the said
properties. This conduct is natural and probable because this
indicates that she was satisfied with the portion of the house
that was allotted to her in 1989 by her mother, which as a
matter of fact, she has disposed off in 2002 and she had no
concern with Schedule A and B properties.
123. It is also to be noticed here that plaintiffs 3 and 5 were
prudent enough to get a registered Partition Deed executed by
their mother in 1989 and thereby secure the most valuable
asset of the family allotted to them i.e., the house which has
been stated to be then worth Rs.2,00,000/- in the Partition
Deed, while the other agricultural property Schedule 'A'
property which was then worth only Rs.80,000/- was allotted to
their mother. It is, therefore, simply inconceivable that they
would not stake a claim over schedule A and B properties after
the death of Kempaiah and would have waited for over two
decades i.e., from 1986 to 2005 to file the suit.
124. The fact that none of the plaintiffs except plaintiff No.5
chose to depose before the Court also lends credence to the
possibility that all of them were satisfied with the settlement of
properties in their favour by Kempaiah during his lifetime and
they had acquiesced to the exclusive enjoyment of schedule A
and B properties by defendant No.1. This also gives rise to the
impression that Kempaiah had indeed bequeathed both the
said properties to defendant No.1 and this was also accepted by
his sisters.
125. Defendant No.1 after the death of his father in 1986 got
the revenue entries mutated in his name in the year 1987 when
his mother was alive and plaintiff No.5 was yet to be married.
This change of entries without there being any protest at that
point of time indicates that the entire family had acquiesced to
his entitlement to schedule A and B properties.
126. If this conduct of the plaintiffs is viewed in the backdrop
of the fact that plaintiffs 3 and 5 got the Khata of the house
property changed in their name immediately after the Partition
Deed dated 02.02.1989 and plaintiff No.5 also proceeded to sell
property allotted to her, it becomes quite clear that none of the
plaintiffs had any grievance regarding the entitlement of
defendant No.1 over schedule A and B properties.
127. Defendant No.1 has not only produced the original Sale
Deeds pertaining to schedule 'A' and 'B' properties which were
in his custody, but also all the supporting revenue documents
of that relevant period, such as RTC's, Tax paid receipts,
Mutation records, relating to phodi, Patta and Receipt Books
(Exs.D-6 to D-78, Exs.D-82 & D-83) to establish that he was in
exclusive possession and enjoyment of suit schedule properties.
He has also produced documents spanning over two decades
which establish that he has expended monies to develop
schedule A and B properties(Exs.D-84 to D-104), which
reinforce the factum of his exclusive possession and enjoyment.
These documents prove that it was defendant No.1 who has not
only been in exclusive possession of the schedule A and B
properties, but had also taken care of them as a true owner.
128. It may be relevant to notice here that plaintiff No.5 in her
cross-examination asserted that her father had constructed a
house on schedule A and B properties. However, the fact that
the Will dated 22.02.1984 (Ex.P.17) set up by her claiming to
have been executed by her father and the Partition Deed dated
02.02.1989 (Ex.P-1) executed by her mother are completely
silent about any house other than the one in Chinnayyanapalya
which was allotted to her, is a clear pointer to the fact that the
house standing on schedule 'A' and 'B' properties was indeed
constructed by defendant No.1.
129. It is no doubt true that the mutation in respect of
schedule 'A' and 'B' properties in favour of defendant No.1 is
stated to have been made on the premise that defendant No.1
was the only son of Kempaiah and there is no clear mention of
a testamentary succession, though there is an entry that it was
on the basis of a Will. This insertion of words "as per will", as
sought to be highlighted by Sri Madhusudhana Rao, as an
afterthought thereby implying that the Will was subsequently
created cannot also be accepted.
130. This is, firstly, because the challenge to the order of
mutation of the year 1987 was made in 2010 i.e., five years
after the suit was filed and secondly, because the plaintiffs did
not seek for production of the original mutation register to
establish their allegation. It must be kept in mind that the
revenue records or proceedings before revenue courts cannot be
determinative of any fact in issue and each issue between the
parties will have to be either proved or disproved before the
Civil Courts independently and in accordance with law. The
assertion by the plaintiffs that the revenue records were
obtained by subterfuge, firstly, having not been established,
and secondly not being determinative of any fact, deserves to be
rejected.
131. The other two arguments that defendant No.1 had set up
another Will of Lingamma dated 27.01.1987 (Ex.D-3), which
was sought to be passed off as a consent letter for change of
Khata and that this document was a fabricated document since
the fingerprint expert had opined that the thumb impression
has been smudged, cannot also be accepted as it contradicts
the plea set up by the plaintiffs in the revenue proceedings.
132. The plaintiffs challenged the mutation entry in favour of
defendant No.1 based on Kempaiah's Will, on the premise that
the words "as per Will" had been subsequently inserted. As held
earlier, this assertion was not proved by securing the original
mutation register. Further, since the plaintiffs themselves allege
that mutation of schedule-'A' and 'B' property was being sought
for by the defendant No.1 on the ground that he was the only
son, the question of defendant No.1 taking advantage of the
alleged fabricated Will/consent letter dated 27.01.1987 of his
mother Lingamma would be untenable since Lingamma was
alive in 1987 and any mutation sought for on the basis of a will
when the testator was still alive would be absurd.
133. There are a few other factors which lend credence to the
Will executed in favour of defendant No.1 and indicates that the
earlier Will executed by Kempaiah was cancelled.
134. In the Partition Deed dated 02.02.1989, it has been stated
as follows:
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135. The aforesaid recitals indicate that only Lingamma and
plaintiffs 3 and 5 had constituted the joint family, which would
be rather absurd, given the fact that Lingamma had six
daughters and a son. The fact that there is absolutely no
mention about the share they had acquired on Kempaiah's
death in schedule-B property indicates that this Partition Deed
was created for ulterior purposes.
136. The recital that the parties to the partition deed would not
claim any other property standing in the name of their mother
or in favour of any other family member also indicates that the
3rd and 5th plaintiffs were basically taking the house property in
complete renunciation of any right that they may possess in
respect of any property standing in the name of Lingamma or
any other member of the family.
137. It may also be pertinent to state here that at the time of
registration of the Will dated 22.02.1984, Kempaiah was
identified by his son-in-law, M.V.Srinivas (husband of plaintiff
No.3). It has also come out in the evidence that at the request of
the very same M.V.Srinivas, both the attesting witnesses, both
of whom were employees of the Advocate General's Office had
attested the Will. In fact, one of the attesting witness (PW-3) has
deposed that the Will was ready when they arrived at the house
and M.V.Srinivas had read out the Will and he was not aware
as to who prepared the Will. From this admission made by
PW.3 it is clear that M.V.Srinivas, the son-in-law, had played a
leading role in the execution of the Will of Kempaiah.
138. The fact that even for the execution of the Partition Deed
executed by Lingamma, (his mother-in-law), his wife (plaintiff
No.3) and his unmarried sister-in-law (plaintiff No.5),
M.V.Srinivas played an active role in the affairs of the family of
Kempaiah is not in serious dispute.
139. Sri Y.N.Beeralingegowda, (PW-4), one of the witnesses to
the Partition Deed dated 02.02.1989 (executed between
Lingamma and her two daughters) has deposed that
M.V.Srinivas read over the contents of the Partition Deed to
Lingamma and he was also present in the office of Sub-
Registrar during the registration of the Partition Deed. It is also
the admitted evidence of the plaintiffs that the witnesses to the
Partition Deed were the colleagues of M.V.Srinivas and they had
come over to affix their signatures on his request. These facts
clearly establish that M.V.Srinivas, the husband of plaintiff
No.3 had also played an active role in the execution of the
Partition Deed also.
140. The fact that only his wife and just one other sister-in-law
were being allotted a share in the only house property and no
other daughters were involved in this document clouds the real
motive behind the execution of the Partition Deed.
141. It is also to be noticed here that the very same
M.V.Srinivas is also an attesting witness to the Will dated
16.01.1998 (Ex.P-16) executed by Lingamma. The attesting
witness to the Will - Sri K.Manjunath (PW-2) has deposed that
M.V.Srinivas was his friend and he had called him over to attest
the Will. He has also deposed when he came to the house, the
Will was already prepared and that M.V.Srinivas had read out
the Will to Lingamma. He has also stated that at M.V.Srinivas's
request he went to the Sub-Registrar after a few days along
with M.V.Srinivas and Lingamma when the Will was registered.
He has stated that at the time of execution of the Will,
M.V.Srinivas's wife (plaintiff No.3) was present. Under this Will,
his wife has been granted a share in the schedule-A property
along with other siblings.
142. These instances go to show that M.V.Srinivas was omni
present and was an active participant, if not the driving force
behind the execution of documents relating to the properties
owned by Kempaiah and Lingamma. The active participation of
M.V.Srinivas in execution of documents in which his wife was a
beneficiary casts a serious doubt not only on the motive but
also on the real need behind the execution of said documents.
143. It must also be kept in mind that Kempaiah and
Lingamma had only one son, who was not only well educated
but also well placed in life and they were residing with him and
despite this they relied upon just one of their son-in-law's when
it came to dividing the properties or bequeathing them, which
would most definitely be unnatural. This only indicates that
M.V.Srinivas was influencing all their decisions and was
exploiting the situation to his benefit.
144. It is also to be noticed that it was nobody's case that
neither Kempaiah nor Lingamma had any kind of a strained
relationship with their son and thus the execution of
documents relating to their property with the involvement of
just one son-in-law renders them not only unnatural and
unreal but it is also indicative of an ulterior purpose.
145. Yet another factor to be kept in mind is that Kempamma,
the 2nd daughter of Kempaiah and Lingamma had lost her
husband within a year of her marriage and she had thereafter
returned from her marital home and was staying with
defendant No.1 along with her only daughter i.e., defendant
No.2,. This indicates that defendant No.1, as the only son of the
family, had taken up the responsibility of looking after his
widowed sister and her daughter.
146. Despite the fact that she had a widowed daughter in the
house, Lingamma, being a mother of six daughters and a son,
chose to execute a Partition Deed in respect of the house in
which she and her husband had resided in favour of just two
daughters ignoring the wellbeing of her widowed daughter also
renders the Partition Deed suspect.
147. This would have to be considered as a rather unnatural
act if viewed in the background of the fact that Lingamma had
settled a house property in favour of her eldest daughter in
1977 itself under Gift Deed dated 23.03.1977 (Ex.D-79). This
also indicates that Lingamma and Kempaiah were being
exploited by some of their children for their own interests and
hence the set of documents relied upon by the plaintiffs are
required to be viewed as suspicious and/or got executed for
ulterior purposes.
148. Trial Court, on consideration of the evidence in great
detail, has arrived at the conclusion that Kempaiah had not
executed the Will dated 22.02.1984 on his own free will and
volition and he had thereafter changed his mind and cancelled
this Will by executing another Will dated 10.03.1985.
149. Trial Court, on appreciation of the oral evidence of the
attesting witnesses, has also arrived at a conclusion that the
manner in which the documents relied upon by the plaintiffs
were executed and the manner in which M.V.Srinivas was
involved, had rendered all those documents suspect and it
would not be safe to rely upon them. In our considered view,
this appreciation of evidence by the Trial Court given the
contextual evidence and surrounding circumstances is both
rational and proper.
150. Trial Court has also taken note of the fact that despite the
stated execution of a registered Will on 16.01.1998, the said
Will was not pressed into service to get the mutation of the
revenue records and on the other hand, revenue records were
changed pursuant to the Will dated 10.03.1985 executed by
Kempaiah in favour of defendant No.1 led to an inference that
the Will of Lingamma dated 16.01.1998 which had been set up
by the plaintiffs was also suspect. This reasoning of the Trial
Court cannot be said to be improper in any manner.
151. In our view, the reasoning of the Trial Court is just and
proper and cannot be said to be perverse in any manner. The
Trial Court, taking into consideration the totality of
circumstances and the evidence adduced by both the parties,
has rightly arrived at a conclusion that defendant No.1 had
established that Kempaiah had executed the Will dated
10.03.1985 by which he had cancelled his earlier Will dated
22.02.1984.
152. We therefore affirm the said conclusion, not only for the
reasons spelt out by the Trial Court, but also of our own
reasons narrated in this judgment.
153. As a necessary consequence to the above, we hold that
defendant No. 1 had proved the execution of the Will dated
10.03.1985 in respect of schedule A and B properties by
Kempaiah in his favour and we hold that Lingamma's
subsequent Partition Deed dated 02.02.1989 and the execution
of the Will dated 16.01.1998 in respect of schedule-A property
have no bearing whatsoever on the 1st defendant's succession to
the schedule A or B properties.
154. As a consequence, defendant No.1 would be entitled to
succeed and become the owner of schedule- A and B properties
exclusively by way of testamentary succession i.e., the Will
dated 10.03.1985 (Ex.D-105). Hence, we affirm the judgment
and decree passed by the trial court by holding there is no error
committed by the trial court.
For the reasons assigned herein above, we proceed to pass
the following:
JUDGMENT
(i) Appeal is dismissed with costs throughout.
(ii) Judgment and decree dated:20.12.2018
passed by the XXXVIII Additional City
Civil and Sessions Judge, Bangalore City,
in O.S.No.1721/2005 is affirmed.
(iii) Registry to draw the decree accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
PKS
