Karnataka High Court
K Sadguna Rao vs Sri K Yohan on 13 December, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL No.2255/2006 (RES)
BETWEEN
K SADGUNA RAO
S/O LATE K DEVABUSHANAM ALIAS
KONDA DEVABUSHNAM
AGED ABOUT 35 YEARS
RESIDING AT NO.394, 7TH CROSS,
VIVEKNAGAR EXTN.,
BANGALORE -560 047
...APPELLANT
(BY SMT. RAJESHWARI .M, ADVOCATE)
AND
1. SRI K YOHAN
S/O LATE K DEVABUSHANAM
ALSO KNOWN AS KONDA DEVABUSHANAM
AGED ABOUT 26 YEARS
RESIDING AT NO.50,
ANDHRA LINES
VIVEKANAGAR CIVIL STATION
BANGALORE -560 047
2. K ABRAHAM
S/O K DEVABUSHANAM ALIAS
KONDA DEVABUSHANAM
2
AGED ABOUT 30 YEARS
RESIDING AT NO.706, 3RD MAIN ROAD
DOMLUR
BANGALORE -560 071
...RESPONDENTS
(BY SRI HEMANT KUMAR.K.B, FOR
SRI RAMACHANDRA RAO.B, ADVOCATES FOR R1;
SRI PALANIMUTHU, ADVOCATE FOR R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2006 PASSED IN
O.S.NO.10651/1994 (CCCH-21) ON THE FILE OF THE IV
ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,
BANGALORE CITY, ALLOWING THE SUIT FOR PROBATE.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
The present Appeal is preferred by the first
defendant against the judgment and decree passed in
O.S.No.10651/1994 dated 05.08.2006 on the file of the IV
Additional City Civil and Sessions Judge, Mayo Hall Unit,
Bengaluru City (CCCH-21).
2. For the sake of convenience, parties are referred to
as plaintiff and defendants as per their original ranking
before the Trial Court.
3. The case of the parties in brief as per their pleadings
in the Trial Court which are utmost necessary for disposal
of the present Appeal are as under:
Plaintiff filed a suit against the defendants for grant
of probate in respect of immovable property i.e., site
bearing No.86, Sonnenahalli further extension, measuring
East to West 7.60 meters and North to South 12.50
meters, bounded on the East by site No.87, West by site
No.85, North by site No.77 and South by Road, hereinafter
referred to as 'suit property'.
4. Initially, a case came to be filed in P & SC No.
10046/1986 for grant of probate under Section 276 of the
Indian Succession Act, 1955. Thereafter, in pursuance of
the citation issued in the said case, defendants were
impleaded as they objected for issue of probate. Since the
defendants have opposed the claim made in the petition
seeking grant of probate, petition was tried as original suit
in O.S.No.10651/1994.
5. The petition averments reveal that one
K.Devabhushanam is the father of the plaintiff and
defendants. He was also called as Konda Devabhushanam
who died on 04.06.1985 at St. John's Medical College and
Hospital, Civil Station, Bengaluru. K.Devabhushanam said
to have executed his last Will and testament on
24.05.1985 in the presence of witnesses and petitioner is
the executor named in the said Will empowered to act as
sole executor. The amount of assets likely to come to the
hands of the plaintiff did not exceed Rs.50,000/- and
plaintiff undertook to administer the property of
K.Devabhushanam and to make full and true inventory
thereon within six months from the date of grant of
probate and also render true account to the Court as
required under the provisions of the Indian Succession Act
and sought for grant of probate.
6. The claim of the plaintiff came to be resisted by the
defendants by filing written statement, wherein, they
contended that plaintiff and defendants are true brothers
and health condition of K.Devabhushanam was fragile and
he was admitted to hospital in April 1985 and was treated
as inpatient in the hospital and he was completely bed
ridden and he was unable to move around and unable to
lift his hands also, in view of the ill heath and medical
condition of Devabhushanam.
7. It is also contended that K.Devabhushanam was not
at all in a position to speak properly and had no sound and
disposing state of mind and he was unable to understand
the worldly things on account of ill health.
8. The defendants disputed the execution of the Will by
K.Devabhushanam on 24.05.1985 relied on by the plaintiff.
They also disputed that certain debts were left behind by
K.Devabhushanam and therefore, the averments made in
the petition that there is only assets of Rs.50,000/- of
Devabhushanam and no debt is incorrect. They further
contended that the suit property was allotted to
K.Devabhushanam by the Bengaluru Development
Authority in the year 1974-75 and in the absence of the
Will, plaintiff and defendants are entitled to equal right in
the suit property.
9. Based on the rival contentions of the parties, the
Trial Court raised the following issues:
(i) Whether the plaintiff proves that
K.Devabhushanam has executed his Will and
testament on 24.5.85?
(ii) Whether the plaintiff is entitled for the
Succession Certificate?
(iii) Whether the defendants prove that they are
entitled for share in the suit property and if so,
how much?
(iv) What Order or decree?
10. In order prove the case of the plaintiff, plaintiff got
examined himself as P.W.1 and three more witnesses as
P.Ws.2 to 4 and relied on seven documentary evidence
which were produced and marked as Exs.P.1 to 7
comprising of Discharge summary at Exs.P.1 and 2,
Medical Bills at Ex.P.3, Death Certificate at Ex.P.4, certified
copy of the order sheet at Ex.P.5, Will at Ex.P.6 and
Certificate at Ex.P.7.
11. On behalf of the defendants, first defendant got
examined himself as D.W.1 and did not place any
documentary evidence on record.
12. Thereafter, the Trial Court heard the parties in detail
and on cumulative appreciation of the material evidence on
record, decreed the suit of the plaintiff, as under:
"The suit of the plaintiff is allowed. Issue Probate
in respect of the Will dated 24.05.1985 of deceased
Sri Konda Devabushanam, as prayed for in favour
of the plaintiff on furnishing requisite fee. The
plaintiff shall administer the property of the
deceased properly and to make a true inventory of
the property and credits and exhibit the same
within six months from this date and render true
account of the property and credits within one year
from the date of grant of Probate."
13. Being aggrieved by the judgment and decree passed
by the Trial Court, present Appeal is preferred on the
following grounds:
"The Judgment passed by the Ld. Judge holding the
Will, dated 24.05.1985 of the alleged Konda
Devabushanam is not based on a proper reasoning of
the subject matter in dispute and hence, the Orders
suffers from serious infirmities which is opposed to the
facts and probabilities of the case.
"Admittedly, the deceased Konda Devabushanam was
seriously ill. He was suffering from high level of
Diabetes, Blood Pressure and coupled with mental
ailments as asserted by PW4, the Respondent's
Witness who during the course of Cross Examination
has admitted that the deceased Konda Devabushanam
was suffering from mental ailments which had
characteristics of lack of interest, sad mood and ideas
of suicide. The said PW4 namely Dr. Prakash Appaiah
asserts the fact that Konda Devabushanam was
suffering from mental ailments which continues for 6
to 8 months and it resolves itself. He admits to the
fact that on 12.02.1985, the deceased Konda
Devabushanam was suffering from the said
depression, when he was admitted to St. John's
Hospital on 12.02.1985. According to the Ld. Medical
Practitioner, that depression would have lasted for
about 6 to 8 months. Taking this fact into
consideration, it was not possible for Konda
Devabushanam to have a mentally disposing state of
mind on 24.05.1985 i.e., three months of admission to
the St. John's Hospital. It is also in evidence that on
24.05.1985, the deceased Konda Devabushanam was
administered blood and other medicines which facts
goes to show that the deceased Konda Devabushanam
was under medical treatment which would not permit
the deceased to execute a Will. PW4 asserts that
Konda Devabushanam was suffering from agitated
depression. In view of this evidence, the Ld. Judge
ought to have come to an altogether different
conclusion regarding the clam of execution of the
alleged Last Will of Konda Devabushanam at a time
when the deceased was not in a fit state of mind.
Added to the above said mental ailments, the
deceased Konda Devabushanam admittedly was
seriously ill for ailments of Diabetes and Hypertension
and he died due to these ailments in the Hospital on
04.06.1985 i.e., after about 10 days. The Trial Court
ought to have drawn an inference with regard to the
physical and mental state of the deceased when the
alleged Will was brought about. A plain reading of the
evidence of PW4 would point out that the
Plaintiff/Respondent No.1 has not discharged his
burden of proving the Will marked as EXHIBIT P1 as
required under the provisions of Law in regard to
suspicious circumstances in which it was brought
about.
The Ld Judge has also grossly erred in accepting the
evidence of PWI who has given a self interested
testimony in regard to execution of the Will. The
contention of PW is not corroborated by any of the
witnesses. The exclusion of the Appellant and the
other members of the family and bequeathing over the
entire property in the name of the Respondent No.1
(PW1) would point out that PW1 has concocted the
Will and brought about the said Will in a suspicious
manner.
The Ld. Judge has grossly erred in taking into
consideration the evidence of PW2-Daniel Ravikumar
who according to PW2 he knew the family of the
Plaintiff and the Defendant from 1994 as mentioned in
the Judgment at para No.7. Apart from this, merely
because PW2 identified EXHIBIT-P6 as the Will in the
evidence cannot prove the fact that he was present at
the time when the deceased affixed his signature, this
is stated because in the entire Examination-in-Chief,
he has not stated anywhere the important evidence
required for the satisfaction of Section 68 of the Indian
Evidence Act. There is absolutely no proof of Execution
by PW2 since PW2 has not stated anywhere in his
deposition that he has witnessed the deceased affixing
his signature in his presence. But, the Ld. Judge
accepts the evidence of PW2. In the Examination-in-
Chief, PW2 has merely stated that he does not know
who prepared the Will and that Konda Devabushanam
merely kept the Will with himself, all these could not
have been done by the deceased if at all the evidence
of PW4 - Dr. Prakash Appaiah is accepted, wherein he
has asserted that the deceased was suffering from
agitated depression. Therefore, the evidence of PW2
who is a priest cannot be accepted as proof of
execution of the alleged Will of Konda Devabushanam
The Ld. Judge has grossly erred in accepting the
evidence of PW3, examined as an afterthought by the
Respondent No. I who contends that in his
Examination in Chief that he is the Draftsman and that
he took instructions to prepare the Will and he handed
over the said Will of the deceased on 22.05.1985. This
evidence of PW3-N Y Adhikari is strongly opposed and
in his Cross Examination, the Advocate admits to the
fact that he had no proof to show that he has drafted
the Will. He has also not affixed his signature as a
Draftsman. He also accepts to the fact that on the
date of 22.05.1985, the deceased was under a
treatment in St. John's Hospital, having prevented
PW3 from mentioning this fact in his Examination in
Chief. Therefore, the evidence of PW3 also would not
support the case of the Plaintiff in any manner in view
of the fact that the evidence of PW3 was brought
about by afterthought.
As discussed above, the evidence of PW4 is clear in his
deposition wherein he has asserted that the deceased
was suffering from agitated depression who according
to the Doctor died at the Hospital.
The Ld. Judge discussed the evidence of PW4 but
comes to a conclusion at para No.10 in one sentence
holding that the evidence of PW1 to 4 and EXHIBIT-P6
makes it manifest for Late Konda Devabushanam to
have executed a Will on 24.05.1985 in the presence of
witnesses. This finding of the Ld. Judge 10 erroneous
in view of the fact that the evidence of PW4 Dr.
Prakash Appaiah does not support this reasoning.
Even the Evidence of PW2 could not be accepted as
there is absolutely no statement showing him as a
witness to the Execution. Therefore, the Ld. Judge has
grossly erred in accepting the Will at EXHIBIT-P6 to
have been executed by Late Konda Devabushanam
even though the propounder of the Will namely the
Plaintiff has not discharged his burden in proving the
Will to the satisfaction of the Court, coupled with that,
the Will is brought about by suspicious circumstances
as it has been brought admittedly at a time when the
deceased we suffering from agitated mental
depression.
The reasons for excluding the other members of the
would also discredit the terms of the Will and in view
of the fact that proper custody of the Will is also not
proved, since PWI has produced the Will, PW2 only
speaks about the Will even though according to PW1,
the Will was in the custody of PW2. PW2 has not
produced the Will. Therefore, since the Will is not
produced from proper custody, the Will at EXHIBIT-P6
is tainted with suspicious circumstances.
The Ld. Judge has failed to take into consideration the
various admissions and the rulings in regard to the
disputed Will at EXHIBIT-P6 where the citation would
through light on the fact that the Will at EXHIBIT-P6
which is brought about by suspicious circumstances
could not have been accepted as the Last Will and
Testament of the deceased Konda Devabushanam.
There is no evidence to show that EXHIBIT-P6 was
produced in earlier proceedings or Suit
Viewed from all angles, the Judgment of the Ld. Judge
suffers from serious infirmities resulting in the
Judgment to be set aside."
14. Learned counsel for the appellant, reiterating the
grounds urged in the appeal memorandum, contended that
the learned Trial Judge failed to appreciate the material
evidence on record, especially, cross-examination of the
plaintiff witnesses in establishing the validity of the Will
said to have been executed by K.Devabhushanam. The
medical records and the oral evidence would establish that
the executor of the Will was not in a fit mental condition to
execute the disputed Will and therefore, the Trial Court
ought not to have believed the same and should have
dismissed the suit, and sought for allowing the appeal.
15. The scribe of the Will who has been examined as
P.W.3 has clearly admitted in his cross-examination that
his signature is not forthcoming in Ex.P.6. Under such
circumstances, the entire evidence of P.W.3 should have
been discarded by the Trial Court.
16. He also contended that in the cross-examination of
P.W.4, it has been elicited that K.Devabhushanam was
suffering from depression and he was in sad mood and he
had entertained the ideas committing suicide. P.W.4 also
admitted that depression and hypertension was not on
account of diabetes, and depression would usually last for
six to eight months and it has to resolve by itself.
17. He further contended that there is a clear admission
by P.W.4 that K.Devabhushanam was suffering from
agitated depression, he was admitted to the hospital in
February 1985 and therefore, plaintiff was constrained to
establish before the Court the fit mental condition of
K.Devabhushanam in executing Ex.P.6-Will and material
evidence on record is short of establishing the said fact
and therefore, sought for allowing the appeal.
18. Per contra, learned counsel representing the plaintiff
supported the impugned judgment by contending that Will
has been proved as required under Section 63 of the
Indian Succession Act, 1925 and Section 68 of the Indian
Evidence Act, 1872 by placing necessary oral and
documentary evidence on record and the learned Trial
Judge has rightly appreciated the same and allowed the
suit of the plaintiff and sought for dismissal of the appeal.
19. In view of the rival contentions of the parties, the
points that would arise for consideration are:
(i) Whether the plaintiff has successfully
established that Ex.P.6 is free from
suspicious circumstances and executor of
Ex.P.6 (K.Devabhushanam) was in a fit
mental condition to execute Ex.P.6?
(ii) Whether the impugned judgment is
suffering from any legal infirmity or
perversity and thus calls for interference?
(iii) What Order?
20. How a Will has to be established before the Court of
law is no longer res integra. The Hon'ble Apex Court, time
and again has issued several guidelines as to how proof of
a Will has to be appreciated, right from the case of
H.Venkatachala Iyengar vs. B.N. Thimmajamma and
Others reported in AIR 1959 SC 443 and other catena of
judgments.
21. In this regard few of the judgments and the relevant
portions thereof which are apt and which would be of
relevance are quoted hereunder:
H. Venkatachala Iyengar v. B.N. Thimmajamma and
others reported in AIR 1959 SC 443.
"18. What is the true legal position in
the matter of proof of wills? It is well-known
that the proof of wills presents a recurring
topic for decision in courts and there are a
large number of judicial pronouncements on
the subject. The party propounding a will or
otherwise making a claim under a will is no
doubt seeking to prove a document and, in
deciding how it is to be proved, we must
inevitably refer to the statutory provisions
which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are
relevant for this purpose. Under Section 67,
if a document is alleged to be signed by any
person, the signature of the said person
must be proved to be in his handwriting, and
for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are
made relevant. Section 68 deals with the
proof of the execution of the document
required by law to be attested; and it
provides that such a document shall not be
used as evidence until one attesting witness
at least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the nature of
proof which must be satisfied by the party
who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian
Succession Act are also relevant. Section 59
provides that every person of sound mind,
not being a minor, may dispose of his
property by will and the three illustrations to
this section indicate what is meant by the
expression "a person of sound mind" in the
context. Section 63 requires that the testator
shall sign or affix his mark to the will or it
shall be signed by some other person in his
presence and by his direction and that the
signature or mark shall be so made that it
shall appear that it was intended thereby to
give effect to the writing as a will. This
section also requires that the will shall be
attested by two or more witnesses as
prescribed. Thus the question as to whether
the will set up by the propounder is proved
to be the last will of the testator has to be
decided in the light of these provisions. Has
the testator signed the will? Did he
understand the nature and effect of the
dispositions in the will? Did he put his
signature to the will knowing what it
contained? Stated broadly it is the decision
of these questions which determines the
nature of the finding on the question of the
proof of wills. It would prima facie be true to
say that the will has to be proved like any
other document except as to the special
requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As
in the case of proof of other documents so in
the case of proof of wills it would be idle to
expect proof with mathematical certainty.
The test to be applied would be the usual
test of the satisfaction of the prudent mind
in such matters."
19. However, there is one important feature
which distinguishes wills from other
documents. Unlike other documents the will
speaks from the death of the testator, and
so, when it is propounded or produced
before a court, the testator who has already
departed the world cannot say whether it is
his will or not; and this aspect naturally
introduces an element of solemnity in the
decision of the question as to whether the
document propounded is proved to be the
last will and testament of the departed
testator. Even so, in dealing with the proof of
wills the court will start on the same enquiry
as in the case of the proof of documents.
The propounder would be called upon to
show by satisfactory evidence that the will
was signed by the testator, that the testator
at the relevant time was in a sound and
disposing state of mind, that he understood
the nature and effect of the dispositions and
put his signature to the document of his own
free will. Ordinarily when the evidence
adduced in support of the will is
disinterested, satisfactory and sufficient to
prove the sound and disposing state of the
testator's mind and his signature as required
by law, courts would be justified in making a
finding in favour of the propounder. In other
words, the onus on the propounder can be
taken to be discharged on proof of the
essential facts just indicated.
J.T. Surappa and another vs. Sri Satchidhanandendra
Saraswathi Swamiji Public Charitable Trust and
Others, reported in ILR 2008 KAR 2115.
"(A) INDIAN SUCCESSION ACT, 1925 --
SECTION 2(h) -- Will -- Proof of -- Legal
requirements -- Duty of the Court -- Five
steps to be considered -- HELD, Under the
Act, the Will to be valid, should be reduced
into writing, signed by the testator and shall
be attested by two or more witnesses and at
least one attesting witnesses shall be
examined. If these legal requirements are
not found, in the eye of law there is no Will
at all. Therefore, the first step is that if the
documents produced before the Court prima
facie do not satisfy these legal requirements,
the Court need not make any further
enquiry, in so far as its due execution is
concerned and can negative a claim based
on the said document -- FURTHER HELD,
The second step is that when the legal heirs
are disinherited, the Court has to scrutinize
the evidence with greater degree of care
than usual -- The third step would be to find
out whether the testator was in a sound
state of mind at the terms of executing the
Will -- The fourth step would be to find out
whether there exists any suspicious
circumstances surrounding the execution of
the Will -- The fifth step is to consider
whether the Will that is executing is in
accordance with Section 63 of the Act read
with Section 68 of the Evidence Act.
(B) INDIAN SUCCESSION ACT, 1925 --
SECTION 63 R/W SECTION 68 -- Execution
of a Will under -- Attestation and Execution
-- Procedure -- HELD, The Will that is
executed is in accordance with Section 63 of
the Act read with Section 68 of the Evidence
Act. The Will is a document required by law
to be attested. The execution of Will must
include both execution and attestation.
"Attestation" and "execution" are different
acts, one following the other. There can be
no valid execution without due attestation,
and if due attestation is not proved, the fact
of execution is of no avail -- The Court has
to find out whether the Will bears the
signature of the testator and the said
signature is placed at a place with the
intention of giving effect to the Will. Further
the said Will has been attested by two
witnesses and whether the witnesses have
seen the testator affixing his signature to the
Will in their presence and if not at least they
receive from the testator a
personal acknowledgement of his signature
or mark and each of them shall sign the Will
as attesting witness in the presence of the
testator though it shall not be necessary that
both of them should be present at the same
time -- FURTHER HELD, Section 68 of the
Evidence Act deals with proof of execution of
documents required by law to be attested. A
Will is a document which requires to be
attested under Section 63(c) of the Act.
Therefore, the said document shall not be
used as evidence until at least one attesting
witness 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.
Whether such a Will is registered or not
registered, in the eye of law it makes no
difference.
Even if the said Will is registered under
the provisions of the Indian Registration Act,
1908 whether the execution of the Will is
admitted or denied, it is necessary to call
an attesting witness in proof of the execution
of the said Will. Under no circumstances the
proof of execution of the Will is dispensed
with in law -- It is only after the Court is
satisfied that all these tests are successfully
passed, the Court can declare that Will is
executed in accordance with law, as such it
is valid and enforceable."
Gist of the legal principles enunciated in above decisions is
that to succeed in proving the Will, the propounder of the
Will is required to place satisfactory evidence that:
(i) the Will was duly signed by the
testator;
(ii) the testator at the time of signing the
will was in a sound and disposing state of
mind;
(iii) the testator understood the nature and
effect of the dispositions; and
(iv) that the testator had put his signature
on the document of his own free will and
lastly
(v) That the Will is free from suspicious
circumstances surrounding the execution
of the Will.
22. Keeping in mind the legal principles enunciated in
the aforesaid judgements, when the material on record is
appreciated, it is pertinent to note that the Will has been
executed in St.John's Hospital, according to the evidence
of P.Ws.1 and 2. P.W.1 is the plaintiff. He has stated that
K.Devabhushanam was admitted to St.John's Hospital, six
months prior to his death. It is an admitted fact that
K.Devabhushanam died in St.John's Hospital on
04.06.1985. Reason for admission as is deposed by P.W.1
is that K.Devabhushanam was suffering from diabetes and
blood pressure.
23. In his cross-examination, P.W.1 has admitted that he
is acquainted with the signature of his father when his
father was in employment. He has admitted that the Will
was received by him, two or three days after the death of
his father from his mother and none else were present at
that time. Immediately after the death of his father,
Pastor of the Church (P.W.2) and others were talking
about execution of the Will by his father and therefore, he
came to know about it. He has stated that, he came to
know about the same through his relatives when they had
come to attend the obsequies of his father which took
place on the eleventh day. His senior uncle Lookaiah was
present on the eleventh day ceremony and except
Lookaiah, none others attended the function. He has
admitted that his father has studied up to 8th or 9th
standard and used to subscribe his signature in English.
He admits that his father was admitted to St.John's
hospital in December 1984 and prior to that, he was
treated in Bowring Hospital and St.Philomina's hospital.
He admits that in January or February 1985, his father had
taken treatment in Bowring hospital for 20 days as
inpatient and at St.Philomina's hospital for another 20 days
and from February 1985, he was inpatient at St.John's
Hospital.
24. He further admits that his father was not allowed to
move around as he was inpatient, till his death. He admits
that he has not verified the date of execution of the Will
and he does not know the date of execution of Will even on
the date of cross-examination. He admits that his step
mother-Graciamma has two children through his father
and they are Ramesh Babu and Suresh Babu. He admits
that no share has been given to them. He admits that his
father was drawing salary in a sum of Rs.1,000/- when he
was in hospital. He admits that there is no mention about
his step mother or defendant Nos.1 and 2 or the children
through step mother in the Will marked at Ex.P.6. He
admits that after the death of his father, step mother has
been appointed by the employer of his father on
compassionate ground. He admits that except on Ex.P.6
he has not seen signature of his father on any other
document. He also admits that he is not acquainted with
the signatures of other witnesses to the Will. He admits
that attesting witnesses to the Will are not related to him.
He admits that Dr.Prakash Appaiah, who had issued Ex.P.7
is not known to him. He admits that he has not given any
application for issuing Ex.P.7. He denied that he has not
spent any money for treatment of his father. He denied
that signatures at Exs.P.6(a) and (b) are not signatures of
his father.
25. One of the attesting witnesses to the Will marked at
Ex.P.6 viz., Daniel Ravikumar is examined as P.W.2. He
deposed before the Court that he is acquainted with
deceased since 1974. He further deposed that he
solemnized the marriage of defendant Nos.1 and 2 and
identified the signature of K.Devabhushanam which were
already marked as Ex.P.6(a) and (b). He identifies his
signature at Ex.P.6(c). He depoed that one Capt.
P.Samuel, was also present at the time of execution of
Ex.P.6 and he also signed the Will marked at Ex.P.6(d).
He further deposed that K.Devabhushanam was in
St.John's hospital at the time of execution of the Will. He
used to visit the sick people as part of his duty. Four days
prior to execution of Ex.P.6, he visited K.Devabhushanam
and at that juncture K.Devabhushanam had expressed his
desire to execute the Will and requested him to be
present. He has further deposed that except testator,
attesting witnesses, none else were present for execution
of Ex.P.6. He further deposed that he does not know as to
who prepared the Will and that K.Devabhushanam kept the
Will with himself and told him that he will give it to P.W.2
after some time and it should be given to his wife after his
death.
26. He further deposed that two to three days later,
K.Devabhushanam gave the Will to him and couple of
more days after the death of K.Devabhushanam, he
handed over the Will to the wife of K.Devabhushanam. He
also deposed that he held the funeral mass of the testator
and at that juncture, he handed over the Will to the wife of
the testator. He further deposed that at the request of
wife of K.Devabhushanam, he read over the contents of
Ex.P.6. He further deposed that K.Devabhushanam was
mentally sound and alert, at the time of execution of
Ex.P.6.
27. Witness admits in his cross-examination that he
worked as Priest in the Church of South India. From 1982
onwards, he has been working in Bengaluru in that
capacity in different churches. He admits that between
1982 to 1987, he was working in St.Peter's Telugu Church.
He has further answered that he is not in a position to
estimate the time of treatment at St.John's Hospital that
was imparted to K.Devabhushanam. He has further
answered that he does not know whether
K.Devabhushanam was in service or had retired, at the
time of his death. He further answered that
K.Devabhushanam used to communicate to him in Telugu
language. He has answered that he cannot estimate the
number of visits he had made to K.Devabhushanam till his
death. He has answered that K.Devabhushanam died in
May 1985 and at that juncture in K.Devabhushanam was
residing at Viveknagar.
28. He has further answered that he cannot furnish the
date, month or the year of his visit to St.John's Hospital to
see K.Devabhushanam. He pleaded ignorance about the
ward in which K.Devabhushanam was admitted and so also
he does not possess any document to show that he has
visited St.John's Hospital. He admits that he was not
present when the Will was prepared and he does not know
who is the scribe of the Will. He also admits that at no
point of time, K.Devabhushanam had expressed about the
division of the property. He has answered that for the first
time he saw Ex.P.6 in the hospital and he did not pay
attention to the date of execution of Ex.P.6. He admits
that he was not acquainted with the signature of
K.Devabhushanam apart from Ex.P.6. He further admits
that Capt.Samuel came to the hospital after he had gone
to the hospital. He denied that Ex.P.6 is a concocted
document and have signed Ex.P.6 only to help the
beneficiary under Ex.P.6.
29. The next witness examined on behalf of the plaintiff
is N.Y.Adhikary, an Advocate. He filed an affidavit stating
that he is having home office at Viveknagar.
K.Devabhushanam and his family members were known to
him. He further deposed that during May 1985
K.Graciamma requested him to meet her husband as he
wanted to give instructions for execution of Will.
Accordingly, he went to St.John's Hospital and received
instructions and he had instructed to keep two witnesses
present for attestation. He further deposed that
K.Devabhushanam wanted to execute the Will on
24.05.1985. So he explained him about the Will and he
must get two witnesses for attesting the Will. He identified
his signature on Ex.P.6. In his cross-examination, he
admits that till May 1985 he worked as junior in the office
of Sri K.Kasim, advocate. He admits that he has no
document to show that he was resident of Viveknagar
during 1984-85. He admits that he did not visit the
hospital for taking instructions. He pleaded ignorance that
K.Devabhushanam was inpatient between February 1985
to May 1985. However, he has volunteered to say that
during February 1985 to May 1985, K.Devabhushanam
was suffering from various diseases. He specifically
answered that he did not visit St.John's hospital to get
instructions. He admits that he did not meet Dr.Prakash
Appaiah. He admits that he has not subscribed his
signature as scribe of Ex.P.6. He further admits that
usually he subscribes his signature as a scribe after
execution of Will by the executant.
30. He answered that draft prepared by him has been
carried away by wife of K.Devabhushanam. He has further
answered that he handed over the draft and fair copy of
the Will in May 1985, might be on 22.05.1985. When he
was confronted with Ex.P.3 and questioned that on
22.05.1985, K.Devabhushanam was inpatient, he has
answered that K.Devabhushanam and his wife had visited
him in an autorickshaw and took the Will. He admits that
on 06.01.2004, plaintiff had visited him and requested him
to depose that he had prepared the Will. He denied the
suggestion that at the request of plaintiff he has given
false evidence.
31. Dr.M.Prakash Appaiah, has been examined as P.W.4.
He deposed that he was working in St.John's Hospital since
1981 in the Department of Psychiatry and he has given
treatment to K.Devabhushanam. He has answered that in
May 1985, after recovering from depression,
K.Devabhushanam had mentioned to him that he owns a
site which he wants to bequeath through Will. He has
stated that plaintiff was attending K.Devabhushanam in
the hospital regularly and at his request, he issued Ex.P.7.
32. In his cross-examination, he admits that
K.Devabhushanam was suffering from depression, sad
mood and had ideas of suicide. He has further admitted
that K.Devabhushanam was suffering from severe diabetes
and hypertension prior to admission to St.John's Hospital.
He admits that normally depression continues for 6 to 8
months and it resolves by itself. He also admits that
K.Devabhushanam got admitted to the Hospital on
12.02.1985 and he was already suffering from depression
and depression would have lasted for about 6 to 8 months.
He admits that he is not having any documents in his
possession to establish that he has treated
K.Devabhushanam in the hospital. He has answered that
between February 1985 to 03.01.1989, he has met plaintiff
for about ten times. He admits that he was not personally
present on 24.05.1985 at the time of execution of the Will.
He admits that in Ex.P.2 which is the discharge summary,
there is no mention that he has treated K.Devabhushanam
when he was inpatient. He denied that at the request of
plaintiff he has given false evidence.
33. The documentary evidence which are placed on
record are the medical records, copy of the Will, medical
bills for having purchased the medicines when
K.Devabhushanam was in the hospital and original Will
marked at Ex.P.6, certified copy of the order sheet in
O.S.No.565/1987, death certificate of K.Devabhushanam.
Ex.P.7 is the certificate issued by P.W.4 whereunder, he
has stated that K.Devabhushanam was suffering from
agitated depression, diabetes and hypertension.
34. As against the oral and documentary evidence placed
on record, on behalf of the defendants, K.Sadaguna Rao-
defendant No.1 is examined as D.W.1 deposed about the
relationship between the parties and his father suffering
from ill health. He denied his father having executed the
registered Will vide Ex.P.6. He has further deposed that
he is residing in the schedule property which measures 11
ft x 25 ft. and he has taken electrical connection to the
property mentioned in the Will.
35. In the cross-examination, he has answered that
K.Devabhushanam has visited him when he was residing in
the suit property. He also admits that he has constructed
the house thereon on the oral permission of the
Corporation authorities. He further answered that he was
paying money to his father and after death of his father,
he was paying tax in respect of the schedule property. To
a specific question that medical bills produced before the
Court by the plaintiff shows that it is the plaintiff who has
spent for the medical bills, he has answered that after the
death of his father, plaintiff has collected the LIC Insurance
amount and GPF amount.
36. To yet another specific question that Daniel
Ravikumar has deposed before the Court that his father
has executed the Will, he has emphatically denied that his
father has not executed any Will. To yet another specific
question as to whether any share has been granted under
Ex.P.6, witness has answered that according to him, his
father has not executed any Will.
37. The above evidence on record is sought to be re-
appreciated on behalf of the appellant in the light of the
grounds urged in the appeal memo.
38. On careful consideration of the above oral and
documentary evidence on record, Ex.P.6 is the Will said to
have been signed by K.Devabhushanam in the presence of
Daniel Ravikumar and Dr.Prakash Appaiah (P.W.4).
39. Admittedly, Ex.P.6 is not a registered Will. Ex.P.6
contains signature of K.Devabhushanam marked at
Ex.P.6(a) and Ex.P.6(b). Ex.P.6(c) is the signature of
P.W.2-Daniel Ravi Kumar and Ex.P.6(d) is the signature of
another attesting witness Capt.Samuel.
40. The cross-examination of P.W.2 clearly shows that
he does not remember as to when Ex.P.6 came to be
executed. Nor in his examination-in-chief he has deposed
before the Court that P.W.2 has subscribed his signature
and Capt.Samuel has also subscribed his signature in the
presence of K.Devabhushanam. In his cross-examination
he admits that he has visited the hospital first and
thereafter, Capt.Samuel visited the hospital. Therefore,
there is no proper compliance of requirements of Section
63 of the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. Further P.W.1 being the
propounder of Ex.P.6 has to establish that Ex.P.6 is not
suffering from any suspicious circumstances and also fit
mental condition of the testator.
41. P.W.2 and P.W.4 categorically admit that the health
condition of K.Devabhushanam was fragile and P.W.4
specifically admits that executant was suffering from
mental depression and it takes about 6 to 8 months for the
depression to get cured completely.
42. Admittedly, on 12.02.1985, K.Devabhushanam got
admitted to St.John's hospital and earlier to that he had
taken treatment in Bowring Hospital as well as
St.Philomena's hospital. The discharge summary marked
at Ex.P.1 would go to show that there was swelling in the
legs and he had high blood pressure and diabetes.
43. It is not in dispute that K.Devabhushanam died in
the hospital on 04.06.1985. But, in Ex.P.1 at 3rd page, it
has been written that K.Devabhushanam got admitted on
19.02.1985 and discharged on 09.03.1985. There is a
clear over writing in the 3rd page as to the date of
discharge and date of discharged i.e., 06.06.1985 has
been altered as 09.03.1985. If K.Devabhushanam is
discharged on 09.03.1985 there was no necessity for
P.W.2 to visit the hospital for the purpose of seeing
K.Devabhushanam in the hospital and attesting the Will in
the hospital. The date of execution of Ex.P.6 according to
the plaintiff is on 24.05.1985.
44. It is pertinent to note that P.W.3-the scribe of the
Will has stated before the Court that K.Devabhushanam
has visited his house from the hospital in an autorickshaw
along with his wife and took the Will from his house
situated at Viveknagar. If K.Devabhushanam died in
St.John's Hospital on 04.06.1985, it is highly improbable
for K.Devabhushanam along with his wife to visit the
house of P.W.3 in autorickshaw only for the purpose of
collection of draft and original of Ex.P.6.
45. Even with regard to custody of the Will, according to
P.W.1, it is his step mother Graciamma who possessed the
Will and she handed over the same on the 11th day
ceremony. According to plaintiff, he came to know about
the Will 2 to 3 days after the death of his father-
K.Devabhushanam. P.W.2 has stated that Will has been
handed over to Graciamma as per the wish of the
executant.
46. These admissions on record would not tally with each
other. If the Will is executed on 24.05.1985 as is admitted
by the parties and death of the executant has taken place
on 04.06.1985, it is expected of plaintiff that he should
establish before the Court with cogent and convincing
evidence on record that mental condition of
K.Devabhushanam was fit enough to execute the Will on
24.05.1985.
47. The attestation has been made according to Ex.P.6
itself that the testator having known the contents of the
Will, subscribed his signature on Ex.P.6 in the presence of
attesting witnesses on 24.05.1985 at Civil Station,
Bengaluru. St.John's Medical Hospital is not situated in
Civil Station, Bengaluru. Therefore, attestation of the Will
at St.John's Hospital itself appears to be improbable.
48. The doctor who said to have treated
K.Devabhushanam in St.John's Hospital is examined as
P.W.4. He has deposed that K.Devabhushanam was
suffering from depression, whereas in the discharge
summary issued by St.John's Hospital it has been
mentioned that he was suffering from dementia due to
persistent hypokalemia. The ECG report also shows
abnormality. Swellingness in the foot, face, abdomen,
polydysplasia are also noted and he was complaining chest
pain on and of for a period of one month. If a patient has
been suffering from dementia, there could not be any fit
mental condition to execute the Will on 24.05.1985.
Admittedly, he was treated in St.John's Hospital for the
aforesaid medical disabilities and not for depression as is
deposed by P.W.4. Further, if P.W.4 really treated the
executant, there was no necessity for an outsider to attest
the Will and Doctor himself could be one of the attesting
witness.
49. Surprisingly, scribe of the Will is an advocate who
has been examined before the Court as P.W.3. In his
cross-examination, he admits that he is the junior
advocate practicing with Sri Kasim who has represented
the plaintiff in earlier proceedings. His evidence as
discussed supra, does not inspire the confidence of this
Court for more than one reasons.
50. Firstly, he has not subscribed his signature on the
Will as the scribe of the Will.
51. Secondly, he says that executant and his wife
Graciamma visited him in autorickshaw for collection of the
draft and fair of Ex.P.6. If a person suffering from
dementia and admitted to Hospital and is in a very
precarious health condition, how he would be permitted to
go out of the hospital only for the purpose of collecting the
draft and fair copy of the Will is the question that remains
unanswered on behalf of the appellant.
52. Further, according to P.W.2 by the time he visited
the hospital, Will was already prepared and he does not
know who prepared the Will. These aspects of the matter
throw sufficient suspicion about the genuineness of the Will
and therefore, same cannot be held to be proved.
53. Unfortunately, the Trial Court did not take into
consideration these aspects of the matter while passing
the impugned Order.
54. Further, non examination of Graciamma who has got
the benefit of compassionate appointment who is none
other than the step mother of the plaintiff and defendants,
and non examination of Samuel who is another witness
who had known the family affairs of deceased
K.Devabhushanam are all matters which go to the very
root of the matter in upholding the validity of the Will-
Ex.P.6.
55. Since the Trial Court has not bestowed its attention
to these vital aspects of the matter while appreciating the
case of the plaintiff and has not discussed in detail about
these deficiencies in proving the Will by the plaintiff, this
Court has to term the impugned judgment as perverse and
suffering from legal infirmities.
56. Accordingly, point No.1 is answered in the negative
and point No.2 is answered in the affirmative.
57. Regarding Point No.3: In view of the finding on point
Nos.1 and 2 as above, the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree dated
05.08.2006 passed in O.S.No.10651/1994
on the file of the IV Additional City Civil
and Sessions Judge, Mayo Hall Unit,
Bengaluru City, is hereby set-aside.
(iii) Suit of the plaintiff is dismissed.
(iv) No order as to costs.
Sd/-
JUDGE
kcm
