Smt Siddagangamma vs Smt Ramakka
2023 Latest Caselaw 3310 Kant

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                                                       NC: 2023:KHC:20708
                                                         RSA No. 2151 of 2006
                                                                                R


                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 15TH DAY OF JUNE, 2023

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                        REGULAR SECOND APPEAL NO. 2151 OF 2006 (PAR)
                      BETWEEN:

                      SMT. SIDDAGANGAMMA
                      W/O CHOWDAPPA
                      AGED ABOUT 56 YEARS
                      R/O DASALAKUNTE
                      C.N.DURGA HOBLI
                      KORATAGERE TALUK
                      TUMKUR DISTRICT
                      REPRESENTED BY HER GPA HOLDER
                      D.C.THIPPESWAMY
                      MAJOR.
                                                                 ...APPELLANT
                      (BY SRI. K.N.NITISH, ADVOCATE)

                      AND:
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI       SMT. RAMAKKA
Location: HIGH
COURT OF
                      W/O LATE CHINNACHOWDAPPA
KARNATAKA             AGED ABOUT 56 YEARS
                      R/O DASALAKUNTE
                      C.N. DURGA HOBLI
                      KORATAGERE TALUK
                      TUMKUR DISTRICT.
                                                               ...RESPONDENT
                      (BY SMT.BHARATHI M, ADVOCATE)

                           THIS RSA IS FILED UNDER SECTION 100 OF CPC
                      AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006
                      PASSED IN RA.NO.174/2004 PASSED ON THE FILE OF THE II
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                                        NC: 2023:KHC:20708
                                          RSA No. 2151 of 2006




ADDL. DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
24.10.1997 PASSED IN OS.NO.227/1995 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC KORATAGERE.

     THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The defendant has filed this appeal praying to set

aside the judgment and decree dated 12.01.2006 passed

by the II Additional District Judge, Tumkur in R.A. No.

174/2004 and also judgment and decree dated

24.10.1997 passed in O.S. No. 227/1995 on the file of the

Civil Judge (Junior Division) and JMFC, Koratagere and

prayed to dismiss the suit.

2. The parties will be referred as per trial Court

rankings.

3. The respondent was the plaintiff and the

appellant was the defendant in O.S. No. 227/1995. The

said suit is filed seeking partition and separate possession

of the plaintiff's half share in the suit schedule properties.

NC: 2023:KHC:20708 RSA No. 2151 of 2006

It is pleaded in the plaint that the suit schedule properties

belongs to one Chinnappaiah and he got the same in the

family division taken place among his brothers. Plaintiff

and defendant are the daughters of the said Chinnappaiah.

Chinnappaiah died one year back prior to filing of the suit.

It is stated that the said Chinnappaiah has not executed

any testamentary document in respect of the suit schedule

properties. The said plaintiff and defendant being the

daughters of deceased - Chinnappaiah are entitled to

equal share in the suit schedule properties being Class - I

heirs. It is stated that both plaintiff and defendant are in

joint possession of the suit schedule properties. It is

stated that the parties are Hindus and governed by

Mithakshara Law. As the defendant has refused to effect

partition, on the request made by the plaintiff, the suit

came to be filed seeking partition and separate possession

of the plaintiff's half share in the suit schedule properties.

4. In the written statement, the defendant has

denied the relationship with the plaintiff. It is stated that

NC: 2023:KHC:20708 RSA No. 2151 of 2006

the suit schedule properties are self-acquired properties of

the deceased - Chinnappaiah and the defendant is the only

daughter of the deceased - Chinnappaiah. It is stated that

the suit schedule properties are exclusively in possession

and enjoyment of the defendant. It is further stated that

late Chinnappaiah has bequeathed the suit schedule

properties in favour of the defendant under a registered

Will dated 23.01.1984 and subsequently the said

Chinnappaiah died on 08.12.1994. After the death of

Chinnappaiah, the defendant has become absolute owner

in possession and enjoyment of the suit schedule

properties. It is stated that the plaintiff is a stranger to

the family of the defendant and father of the defendant. It

is stated that the plaintiff is not the daughter of late

Chinnappaiah and claim of the plaintiff is false, frivolous

and vexatious and prayed to dismiss the plaintiff's suit.

5. Based on the pleadings, the trial Court has

framed the issues and additional issues, which reads as

follows:

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Issues

1. Whether the plaintiff proves that the suit schedule property is the ancestral property of the plaintiff and defendant?

2. Whether the plaintiff proves that she herself and defendant are in joint possession over the suit schedule property?

3. To what relief the plaintiff is entitled?

4. What order or decree?

Additional Issues

1. Whether the defendant proves that the plaintiff is not the daughter of late Chinnappaiah, the defendant is the only daughter of late Chinnappaiah?

2. Whether the defendant proves late Chinnappaiah has bequeathed the suit schedule properties in favour of the defendant under the registered will dated 23.01.1984?

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6. Plaintiff and three witnesses were examined as

PWs.1 to 4 and got marked the documents as Exs.P1 to

P6. The defendant and four witnesses have been

examined as DWs.1 to 5 and got marked documents as

Exs.D1 to D24. The trial Court after hearing the

arguments and appreciating the evidence on record, has

answered issue Nos.1 and 2 in the affirmative and

additional issue Nos.1 and 2 in the negative and decreed

the suit of the plaintiff declaring that the plaintiff is having

half share in the suit schedule properties. Aggrieved by

the said judgment and decree passed by the trial Court,

the defendant filed an appeal in R.A. No. 174/2004 on the

file of the II Additional District Judge, Tumkur. After

hearing the parties, the First Appellate Court has

formulated the following points for consideration:

1. Whether the trial Court has erred in decreeing the plaintiff's suit partly without any cost?

2. What order?

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7. The First Appellate Court answered point No. 1

in the negative and dismissed the appeal confirming the

judgment and decree passed by the trial Court. The

defendant, challenging the judgment and decree passed

by the trial Court and the First Appellate Court has filed

this second appeal.

8. This appeal came to be admitted to consider the

following substantial questions of law:

1. Whether the court below is justified in law and on facts in holding that the plaintiff is also the daughter of late Chinnappaiah despite the fact that the said factum has not been proved a provided under Section 50 of the Evidence Act?

2. Whether the court below is justified in law in recording a finding that the defendant has failed to prove due execution and registration of the registered will dated 23.1.1984 - Ex.D4?

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9. After receiving the trial Court records, it is

noted in the order dated 24.03.2010 that exhibits "P

series" and "D series" and depositions of the plaintiff's

witnesses are missing. In the said order, direction was

issued to the trial Court to send the said documents and

both parties were directed to produce the exhibits and

depositions. By order dated 11.10.2013, Registrar

General was directed to enquire and ascertain the

existence or otherwise of those records. The Registrar

General has conducted an enquiry and submitted

preliminary report dated 26.03.2014 and it is noted that

'B' and 'C' files in O.S. No. 227/1995 were destroyed.

Thereafter there was an order dated 04.04.2019 for

reconstruction of the records. Learned counsel for

appellant filed a memo dated 06.06.2019 along with

photocopies of documents marked on defendant's side.

Learned counsel for respondent - plaintiff did not file the

document marked on plaintiff's side stating that they are

not available with them. The said photocopies of Ex.D.

side marked documents were taken on record. Thereafter,

NC: 2023:KHC:20708 RSA No. 2151 of 2006

an application has been filed under Order XXVI Rule 10-A

read with Section 151 of CPC for appointment of an expert

to give report on DNA samples of appellant and

respondent. The said application, i.e., I.A. No. 1/2022

came to be allowed vide order dated 28.11.2022. With

that, the samples of appellant and defendant were

collected before the Registrar (Judicial) and sent for DNA

test. The DNA test report which was received in a sealed

cover was opened in the open Court on 16.01.2023 and it

was taken on record. Learned counsel for appellant filed

his statement of objections to the DNA test report. In

order dated 21.04.2023 it is noted that the said report

affirms the relationship between the appellant - defendant

and respondent - plaintiff. In the said order it was opined

that in view of the decision in the case of

Munivenkatappa Vs. Chikkapapamma reported in ILR

1991 KAR 3014 the matter has to be remanded for

recording evidence of Commissioner with opportunity to

cross-examine and for re-appreciation by Courts below. At

that stage learned counsel for respondent - plaintiff

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submitted that the plaintiff would forego the benefit of the

order passed on I.A. No. 1/2022 and would confine her

arguments based on the evidence already on record and

she has filed a memo along with the signature of the

plaintiff's daughter eschewing the benefit of order on I.A.

No. 1/2022. In view of the said submission, order on I.A.

No. 1/2022 is ordered to be eschewed.

10. Heard learned counsel for appellant - defendant

and learned counsel for respondent - plaintiff.

11. Learned counsel for appellant would contend

that Ex.P.5 - survival certificate and Ex.P.6 - mahazar

prepared by Village Accountant have come into existence

during the pendency of the suit and therefore, no reliance

can be placed on those documents. He contends that the

evidence of P.W.2 to P.W.4 cannot be considered in view

of Section 50 of the Indian Evidence Act as they have not

expressed any opinion. He contends that the revenue

officials cannot issue survival certificate. The plaintiff has

not produced all documents of property, title deeds and

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other documents to prove her relationship. P.W.2 who is

the cousin brother of the defendant had enmity with the

defendant and therefore, his evidence cannot be relied

upon and his evidence is lacking fundamental knowledge

of relationship between the parties and P.W.3 and P.W.4

have no special knowledge. Evidence of D.W.2 who is the

mother's sister of the defendant establishes that the

plaintiff is not the daughter of Chinnappaiah and defendant

is the only daughter of Chinnappaiah. The defendant has

produced Ex.D.1 to Ex.D.3 which are title documents of

the suit properties which show that she is the only

daughter of Chinnappaiah. More so, in the Will - Ex.D.4

there is a mention that defendant is the only daughter. He

contends that the learned counsel for plaintiff who is

respondent herein has not produced any documents for

reconstruction of Ex.P.1 to Ex.P.6 and therefore, no

documents are available on record before this Court

except the oral evidence of P.W.1 to P.W.4. He further

submits that P.W.2 has not stated how he gathered

information about the relationship and therefore, his

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evidence under Section 50 of the Indian Evidence Act

cannot be accepted. On that point he placed reliance on

the decision of the Hon'ble Apex Court in the case of

Dolgobinda Paricha vs. Nimai Charan Misra and

others reported in AIR 1959 SC 914 wherein it is held as

under:

         "10.   The    question         is     whether      these
     statements       of   Janardan          Misra   as   to   his

conduct are admissible under S.50, Evidence Act. Learned counsel for the respondent has contended before us that even apart from S. 50, the evidence of Janardan Misra is direct evidence of facts which he saw and which should be treated as directly proving the relationship between Lokenath and his daughters. We do not think that learned counsel for the respondent is right in his submission that Janardan's evidence directly proves the relation between Lokenath and his alleged daughters, Ahalya, Brindabati and Malabati. Janardan does not say that he was present at the birth of any of these daughters. What he says is that he was present at the

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marriage of Malabati which took place when Lokenath was living and in Lokenath's house; he was also present at the marriages of the first two daughters of Malabati and also at the time of the Upanyan ceremonies of plaintiffs 1 and 2. This evidence, in our opinion, properly comes within S.50, Evidence Act; it shows the opinion of Janardan Misra as expressed by his conduct, namely, his attending the marriage of Malabati as daughter of Lokenath and his attending the marriages and Upanayan ceremonies of the grand-children of Lokenath. ... ...."

12. Placing reliance on the above decision he

contends the evidence of P.W.2 is not relevant as to the

relationship of plaintiff with the defendant and

Chinnappaiah. He contends that Chinnappaiah bequeathed

his properties in favour of the appellant - defendant by

Will dated 23.01.1984 (Ex.D.4). The trial Court and first

appellate Court have not placed reliance on the said Will

and drawn adverse inference as it was not produced along

with the written statement and it was produced after

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completion of the evidence on plaintiff's side. He contends

that if any document is not produced, then the Court can

draw adverse inference and not for delayed production. He

contends, that one of the attesting witnesses who is

examined as D.W.4, his evidence do not establish the due

execution of the Will - Ex.D.4. Therefore, the defendant

has examined the scribe of the Will as D.W.5 and Section

71 of the Evidence Act enables the party to produce other

evidence to prove the Will if the testator examined is not

specific as to the attestor signing in the presence of

testator and the testator executing the Will in his

presence. On that point he placed reliance on the decision

of the Hon'ble Apex Court in the case of M.B. Ramesh

(D) By LRs Vs. K.M. Veeraje Urs (D) by LRs. and

others, reported in AIR 2013 SC 2088 wherein it is held

as under:

"21. The issue of validity of the Will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW2 that he had seen the

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other attesting witness sign the Will in the presence of the testator, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the cross-examination that the other witness (Mr. Mallaraje Urs), Smt. Nagammani, himself and one Sampat Iyanger and the writer of the Will were all present while writing the will on 24.10.1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement along with the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act."

13. The learned counsel submits that even though

the DNA test report is in favour of the plaintiff -

respondent, but the benefit of DNA test report has been

eschewed at the instance of the learned counsel for

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respondent - plaintiff. He submits that on going through

the points formulated by the first appellate Court it is clear

that the first appellate Court has not applied its mind

independently as per the provisions contained under Order

XLI Rule 33 CPC.

14. Learned counsel for respondent - plaintiff would

contend that the evidence of P.W.2 itself is sufficient to

establish the relationship of plaintiff with the defendant

and their father Chinnappaiah. P.W.2 is the cousin brother

of plaintiff and defendant and he is having special

knowledge of the relationship and his evidence is relevant

under Section 50 of the Indian Evidence Act. Ex.P.5 -

survival certificate and Ex.P.6 - mahazar even though

they are not available before this Court, but they have

been referred to by the trial Court and this fact can be

taken into consideration by this Court in their absence

also. D.W.1 in his evidence has admitted that P.W.2 is her

uncle's son. Defendant has applied for certified copy of

Ex.P.5 - survival certificate and Ex.P.6 - mahazar and her

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application - Ex.D.20 and inspite of possessing the same,

the defendant - appellant has not produced the same in

the appeal at the time of reconstruction of the documents.

D.W. 2 who is the mother's sister of defendant is residing

in another village and she is not having special knowledge

of relationship and therefore, the trial Court and the first

appellate Court have rightly not considered her evidence.

D.W.3 and D.W.4 are not related to the parties and they

are residing in some other village and therefore, their

evidence is also not relied upon by the trial Court and the

first appellate Court. The defendant sent notice to the

Tahsildar (Ex.D.21) seeking cancellation of Ex.P.5 -

survival certificate and the Tahsildar sent reply - Ex.D.24

stating that Ex.P.5 - survival certificate issued is proper

and in that it is mentioned that the defendant has failed to

file affidavit to the effect that she is the only daughter of

Chinnappaiah. She further contended that when the

defendant is the only daughter and as she inherits the

property of Chinnappaiah, there was no occasion for

Chinnappaiah to execute the Will in her favour. Evidence

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of D.W.4 and D.W.5 is not sufficient to establish the due

execution of the Will by the testator and therefore, the

trial Court and the first appellate Court have rightly held

that the Will is not proved.

15. It is not in dispute that the suit schedule

properties i.e., item Nos. 1 to 4 are properties of

Chinnappaiah. What is disputed is that the plaintiff -

Ramakka is the daughter of Chinnappaiah and sister of

defendant - appellant. The trial Court and the first

appellate Court placing reliance on the evidence of P.W.2

to P.W.4, survival certificate - Ex.P.5 and mahazar -

Ex.P.6 have held that the plaintiff has proved her

relationship that she is the daughter of Chinnappaiah and

sister of defendant.

16. Learned counsel for appellant would contend

that the evidence of P.W.2 is not in consonance with

provisions of Section 50 of the Evidence Act. Section 50 of

the Indian Evidence Act reads thus:

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"50. Opinion on relationship, when relevant. - When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

17. The Hon'ble Apex Court in the case of Sitaram

Nai Vs. Puranmal Sonal reported in AIR 1985 SC 171

has explained the meaning of the term `opinion'. The

Hon'ble Apex Court said that it was laid down in

Dolgobinda Parich Vs. Nimal Charan Misra reported in

AIR 1959 SC 914 that, what is relevant is the opinion

expressed by conduct, and opinion means something more

than mere relating of gossip or of hearsay; it means

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judgment or belief, that is, a belief or conviction resulting

from what one thinks on a particular question.

18. This Court in the case of Paramagonda and

others Vs. Bangarewwa and another reported in 2003

(1) KCCR 145 has held that where there is a dispute

regarding the relationship of the parties with the

deceased, in a suit for partition of properties of the

deceased, the relatives of the deceased having special

knowledge of the relationship are competent witness and

their evidence is admissible within the meaning of Section

50 of the Evidence Act.

19. In the case of Jagadish Prasad Vs. Sarwan

Kumar reported in AIR 2003 P & H 10 it is held that

where a person is in common relation of the parties in

suit, his statement relating to relationships between the

parties was held to be admissible and believable under

Section 50 of the Evidence Act.

20. D.W.1 in her cross-examination has admitted

that P.W.2 - Krishnappa is her elder uncles' son. Said

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P.W.2 is common relative of plaintiff and defendant. As

P.W.2 - Krishnappa is cousin brother of plaintiff and

defendant, he is having special knowledge of their

relationship with Chinnappaiah. P.W.2 has specifically

deposed that plaintiff - Ramakka and defendant -

Siddagangamma are the daughters of Chinnappaiah.

Therefore, the evidence of P.W.2, who is having special

means of knowledge as close relative of the parties, is

relevant under Section 50 of the Indian Evidence Act.

Evidence of P.W.3 and P.W.4 who are the villagers residing

in the same village will also support the evidence of P.W.2.

Even though it is suggested that P.W.2 is having enmity

with the defendant, it is not established. D.W.1 herself in

her cross-examination has admitted that there were no

disputes between her father and others in respect of suit

schedule properties. D.W. 2 is the younger sister of the

mother of the defendant. She is residing in some other

village. In view of the evidence of P.W.1 to P.W.4 the

evidence of D.W.2 is not reliable and accordingly, the trial

Court and first appellate Court have discarded the

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evidence of D.W.1 to D.W.4. D.W.3 and D.W.4 are

residents of some other village and they are not related to

the family of Chinnappaiah. The trial Court and the first

appellate Court have noted that Ex.P.5 is the survival

certificate issued by the Tahsildar wherein it is stated that

the plaintiff is the daughter of Chinnappaiah. The

defendant has sought for cancellation of Ex.P.5 by notice

(Ex.D.21) issued to the Tahsildar. Said Ex.P.5 is held to be

issued properly and the same is stated in the reply of the

Tahsildar (Ex.D.24) and it is mentioned that the defendant

had failed to file affidavit that she is the only daughter of

Chinnappaiah. Therefore, the trial Court and the first

appellate Court are justified in law and on facts in holding

that the plaintiff is also the daughter of Chinnappaiah.

Accordingly, the substantive question of law No. 1 is

answered in affirmative.

21. Ex.D.4 is the Will dated 23.01.1984. It is the

case of the defendant that her father Chinnappaiah has

bequeathed his properties in her favour and she is the sole

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daughter as per the Will dated 23.01.1984 (Ex.D.4). Even

though the said defence has been taken up by the

defendant in her written statement, she did not choose to

produce the Will till completion of the evidence on

plaintiff's side. Said Will (Ex.D.4) has been produced at the

time of leading evidence by the defendant. Merely because

the said Will is produced at a belated stage it is not proper

to draw adverse inference that the said Will is not genuine.

Adverse inference can be drawn under Section 114 of the

Indian Evidence Act only when a party withholds a

document. D.W.4 is one of the attesting witnesses to the

said Will - Ex.D.4. Evidence of D.W.4 is to the effect that

he affixed his signature on a stamp paper in the office of

Prabhanna (D.W.5) at his instance when he went to his

office and at that time there were several persons in the

office of said Prabhanna and has identified his signature

on Ex.D.4. He has not stated the presence of the testator -

Chinnappaiah at the office of Prabhanna and the testator

signing the Will in his presence. Even though D.W.4 did

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not support the defendant he has not been treated as

hostile.

22. Learned counsel for appellant would contend

that the other attesting witness is no more and in view of

the evidence of D.W.4, the defendant is entitled to

examine the other witness to prove the Will as per the

provision contained in Section 71 of the Indian Evidence

Act. He further submits that the scribe of the Will has been

examined as D.W.5 and his evidence establishes the due

execution of the Will. Section 71 of the Indian Evidence

Act reads thus:

"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

23. This Section enables the parties to prove the

document when attesting witness denies the execution or

does not recollect its execution. Where the attesting

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witness denies or fails to recollect its execution, evidence

of the scribe and other witness is admissible to prove its

due execution. D.W.4 has only stated that he affixed his

signature on the Will (Ex.D.4) as a witness at the office of

Prabhanna. He has not denied the execution of the

document and it is not his evidence that he is not able to

recollect its execution. In the case of a Will the attestor if

declared hostile, other evidence showing proper execution

of the Will can be relied upon as held in the case of B.

Veeramma Vs. C. Ramakrishna reported in AIR 1976

AP 370.

24. Where the attesting witness states that he had

not signed the Will but the executant deceased had not

put his thumb impression in his presence, it was held that

the same could not be termed as denial of execution or

failure to recollect the same so as to attract Section 71 of

the Indian Evidence Act as held in the case of Gurbachan

Singh Vs. Gurdial Singh reported in AIR 2007 (NOC)

2322 (P & H).

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25. In the case of a Will it was held that the words

'execution of a Will' comprehend the attestation in

testator's presence; that, therefore, the testimony of a

non-attesting witness under Section 71 of the Indian

Evidence Act is of no help, and the Will must be held as

not properly proved as held in the case of Harish

Chandra Vs. Basant Kumar reported in AIR 1974 Ori.

170.

26. D.W.5 is the scribe of the Will (Ex.D.4). It is his

evidence that he wrote the contents of the Will as per the

instructions of the testator - Chinnappaiah. Said

Chinnappaiah came to the office along with two persons

namely Chikkanna and Krishnappa. Chinnappaiah affixed

his signature and thereafter, the witnesses affixed their

signature. D.W.5 has affixed his signature as the scribe.

He has identified his signature and signature of the

witness - Chikkanna.

27. Learned counsel for appellant would contend

that the evidence of D.W.5 establishes due execution of

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the Will by the testator - Chinnappaiah as required under

Section 63(c) of the Indian Succession Act. The Hon'ble

Apex Court in the case of Abdul Jabbar Vs. Venkata

Sastri reported in AIR 1969 SC 1147 has held that the

act of attestation must be done animo attestandii Ie with

the intention to attest; the fact that one's name is on the

document does not make him an attesting witness

irrespective of the purpose for which it is there. D.W.5 has

stated in his evidence that he has attested his signature

on the Will as the scribe. There is no intention of D.W.5 to

attest the said Will and therefore signature of D.W.5 on

the Will (Ex.D.4) does not make him an attesting witness.

The Hon'ble Apex Court in the case of N. Kamalam

(dead) and another Vs. Ayyaswamy and another

reported in AIR 2001 SC 2802 has held that subscribing

a signature on the part of the scribe cannot be identified to

be of same status as that of the attesting witnesses.

Signature of the attesting witness on a document required

attestation is a requirement of the statute thus, cannot be

equated with that of the scribe. The animus to attest, is

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not available, so far as the scribe is concerned.

Considering all these aspects the trial Court and the first

appellate Court have rightly held that the defendant has

failed to prove due execution of the Will (Ex.D.4).

Accordingly, the substantive question of law No. 2 is

answered in the affirmative.

In view of the above, the appeal is dismissed.

Sd/-

JUDGE

SMJ/LRS