Karnataka High Court
T Udayakumari vs T Kailaskumar on 8 April, 2024
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RFA No. 1357 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1357 OF 2009 (PAR/SEP-POS)
BETWEEN:
SMT. T UDAYA KUMARI,
W/O GURUSWAMY,
AGED ABOUT 50 YEARS,
R/AT NO.740, 58TH CROSS,
4TH BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
...APPELLANT
(BY SRI N B N SWAMY, ADVOCATE)
AND:
1. T KAILAS KUMAR,
S/O LATE V. THAMMAIAH,
AGED ABOUT 67 YEARS,
R/O H.NO.740 (GROUND FLOOR),
58TH CROSS, 4TH BLOCK,
Digitally signed
by NANDINI R RAJAJINAGAR, BANGALORE-560 010.
Location: High
Court of 2. SUJATHA,
Karnataka W/O LATE T.GANESH KUMAR,
AGE: MAJOR,
R/O NO. 1324/4,
MAHAKAVIPAMPA ROAD,
S RAMESH ROAD, PRASHANTH
NAGAR, T DASARAHALLI,
BANGALORE - 57.
3. T SURENDRA KUMAR,
S/O LATE V THAMMAIAH,
AGED ABOUT 53 YEARS.
SINCE DEAD REP. BY LRS.
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RFA No. 1357 of 2009
3(a) S. PAVAN KUMAR,
S/O LATE T.SURENDRA KUMAR,
MAJOR BY AGE,
R/AT NO. 730, 12TH CROSS,
3RD BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
4. T MANGALA KUMARI,
W/O D RAMACHANDRA,
AGED ABOUT 52 YEARS,
R/O NO. 271, 11TH B CROSS,
14TH MAIN, II PHASE, J P NAGAR,
BANGALORE.
5. T ANNAPURNA,
W/O LATE S KUMAR,
AGED ABOUT 68 YEARS.
SINCE DEAD BY LR:
5(a) MR. S RAGHAVENDRA,
S/O LATE S.K. KUMAR & LATE T ANNAPURNA,
AGED ABOUT 37 YEARS,
R/AT NO. 740 (MAIN HOUSE),
58TH CROSS, 4TH BLOCK, RAJAJINAGAR,
BANGALORE - 560 010
AMENDED VIDE ORDER DATED 19.01.2024
...RESPONDENTS
(BY SRI M SHIVAPRAKASH, ADVOCATE FOR R1;
SMT. ANJANA C H, ADVOCATE FOR R3(a);
NOTICE TO R2 HELD SUFFICIENT V/O DATED 06.06.2017;
NOTICE TO R4 HELD SUFFICIENT V/O DATED 06.07.2017;
NOTICE TO R5(a) HELD SUFFICIENT V/O DATED
19.07.2022)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 8.9.2009 PASSED IN
O.S.NO.7841/1998 ON THE FILE OF THE XX ADDL. CITY CIVIL
& SESSIONS JUDGE, BANGALORE,PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
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RFA No. 1357 of 2009
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment and decree
passed in O.S.No.7841/1998 by the learned XX Additional
City Civil and Sessions Judge, Bangalore City, dated
08-09-2009, whereby the suit filed by the plaintiff for
partition came to be partly decreed. The present appeal is
filed by defendant No.5 in the said suit.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. The factual matrix of the case that is necessary
for the purpose of this appeal are as below:
a) Plaintiff happens to be the son of defendant
No.1 and the brother of defendant No. 3 to 6. The
husband of defendant No.2 was another brother of the
plaintiff.
b) The plaintiff contend that the suit schedule
property which is bearing No.740, situated at 58th Cross,
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4th Block, Rajajinagar, Bangalore, consisting of building
measuring 40 feet East-West and 60 feet North-South,
was allotted to the father of the plaintiff-V.Thammaiah and
a registered sale -cum- lease agreement was executed on
05-04-1956 by CITB, Bangalore. The father of the
plaintiff-V. Thammaiah has mortgaged the property in
favour of Mysore Housing Board, by a registered document
in the year 1958 by taking the advance of Rs.8,000/-
towards the cost of the site and a house was also built on
the suit schedule property and the loan came to be
discharged by V.Thammaiah on 09-05-1971 and therefore,
the mortgage was redeemed. The father of the plaintiff-
V.Thammaiah died on 25-05-1976.
c) Thereafter, the sale deed was executed by Deputy
Secretary BDA in favour of defendant No.1, who is wife of
V.Thammaiah. Accordingly, the name of defendant No.1
was entered in Property Tax Assessment Register of the
City Corporation. Defendant No.1 was not having any
independent income, but she was maintaining herself by
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rents received from the suit schedule property and was
also maintained by her children.
d) It is the contention of the plaintiff that he married
on 24-6-1977 in Bangalore and was residing with
defendant No.1 for some time and due to the differences
among the women folk, he had to reside in a rented house
separately. Thereafter, his sisters i.e., defendant Nos. 3 to
6 got married and the plaintiff attended all the marriages.
Plaintiff was working in PWD and subsequently transferred
to Shimoga and again came to Bangalore in the year
1995.
e) It is contended that the plaintiff and defendants
living jointly, and subsequently, defendant Nos. 1 to 6
separated plaintiff. It is contended that the plaintiff and
defendants have divided suit schedule property into four
portions as shown in the hand sketch. The First Floor of
the property was leased to defendant No.7 for a sum of
Rs.5,00,000/- and the money was collected by defendant
No.3. It is stated that a portion in the ground floor shown
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by hand sketch map was let out to one Boralingaiah on
rent. It is contended that defendant No.6 married to one
S. Kumar, who died in the year 1994 and there was a loan
liability of Rs.75,000/- created in the form of
memorandum of deposit of title deeds on 30-06-1998 and
it was executed by defendant Nos. 1 and 3 to 6. Later loan
was cleared and the encumbrance was released.
f) In the meantime, the brother of the plaintiff i.e.
Ganesh Kumar, who was the husband of defendant No.2
died leaving behind defendant No.2 and two minor
children, who are living separately. It is contended that
defendant No.6 was a quarrelsome lady and due to non
co-operation, the brothers and sisters fed up. Due to such
behavior of defendant Nos. 5 and 6, the plaintiff even had
to go to the police by filing FIR No.259/1998 on 19-07-
1998. It is contended that though the plaintiff and
defendant No. 1 to 4 were there, defendant Nos. 5 and 6
are dominating and occupying the entire building and as
such, the plaintiff was constrained to demand a partition in
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the suit schedule property. It is contended that despite
several panchayats held among the parties they failed,
therefore plaintiff constrained to file a suit claiming
partition of 1/4th or appropriate share. It is the case of the
plaintiff that the suit schedule property is the joint family
property of plaintiff and defendant Nos. 1 to 3 and
therefore, he is entitled for share.
4. On issuance of summons, the defendants
appeared before the trial Court through their counsel.
Defendant No.1 in her written statement admitted the
relationship. She contended that the property in question
was absolutely belonging to her by virtue of the Will
executed by her husband-V.Thammaiah. It is contended
that the property was the absolute property of V.
Thammaih and in fact, he was working at VISL Bhadravati
and out of his own earnings, he had purchased the suit
schedule property.
5. It is contended that after the retirement, V.
Thammaiah had shifted to Bangalore and has applied to
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CITB for a site, which came to be allotted in his favour. It
is contended that V. Thammaiah died on 24-5-1976, but
he had executed a Will earlier to his death and as per the
said Will, the suit schedule property has come to
defendant No.1 Thereafter, the BDA has executed an
absolute sale deed in favour of defendant No.1 and
therefore, it is her exclusive and absolute property. It is
contended that the question of dividing the suit schedule
property arises only after the demise of defendant No.1 if
the property remains intact even after the demise.
6. Defendant No.2, who happens to be the wife of
another son of defendant No.1, contended that, she is
having 1/6th share in the suit schedule property which is
entitled by her husband Ganesh Kumar. She has
supported the other contentions of the plaintiff in her
written statement.
7. Defendant Nos. 2 to 6 filed common written
statement which was also signed by defendant No.1. They
admitted that the suit schedule property was allotted to
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V.Thammaiah and after his death, BDA has executed a
registered Sale Deed in favour of defendant No.1. They
denied that defendant No.1 was not having any
independent income and that she was maintaining the
family out of the rent received from the suit schedule
property. They contended that the plaintiff had never
joined the family and participated in the day today affairs
since from the date of his marriage. Prior to the
institution of the suit, the plaintiff had forcibly entered into
the suit schedule property and he is in occupation of a
portion of the property. They also denied that a portion of
the property was let out to one Boralingaiah and the first
floor was leased to defendant No.7.
8. They contended that the suit schedule property
is the self acquired property of defendant No.1 after
having purchased the same from BDA under a registered
sale deed, the plaintiff being the eldest member of the
family was bound to maintain the family, but after demise
of V.Thammaiah on 24-5-1976 he has failed in his duty
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and therefore, defendant No.1 was forced to maintain
family through Chit fund business. The plaintiff was
married on 24-6-1977 to a gainfully employed lady and
they are reluctant to pay single rupee for maintenance of
the joint family.
9. They further contended that in the year 1978,
the plaintiff has been ousted from the joint family and
therefore, he is not entitled for any reliefs. In the
alternative, defendant Nos. 3 to 6 contended that if at all
the property was originally belonging to father of the
plaintiff and defendant Nos. 3 to 6, it has to be construed
as self acquired property and the same is the subject
matter of Will dated 25-4-1976 executed by V.Thammaiah
in favour of defendant No.1. Hence, they sought for
dismissal of the suit.
10. On the basis of the above pleadings, the trial
Court framed the following issues:
1. Whether the plaintiff proves that he is
entitled for 1/4th share in the suit schedule
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property and separate possession of the same
by metes and bounds?
2. Whether the defendants prove that the
plaintiff was ousted from the joint family from
1978?
3. Whether the defendants prove that the suit
schedule property is self acquired property of the
first defendant and also the subject matter of
the Will dated 25.4.1976 executed in favour of
him?
4. To what reliefs are the parties entitled?
5. What order or decree?
11. The plaintiff was examined as PW1 and
Exhibits P1 to P12 were marked and Exs.P13 to 17 were
marked in the cross examination of PW1. Defendant No.4
was examined as DW1 and Exhibits D1 to D5 were
marked in evidence. Defendant No.5 was examined as
DW2. The attesting witnesses to the Will dated 25-4-1976
was examined as DW3 and another witness was examined
as DW4.
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12. During the pendency of the suit, defendant
No.1 died on 28-5-2006. After hearing the arguments,
the trial Court answered issue No.1 partly in the
affirmative, issue Nos. 2 and 3 in the negative and
proceeded to hold that the plaintiff is entitled for 1/6th
share in the suit schedule property and partly decreed the
suit.
13. Being aggrieved by the said judgment,
defendant No.5 is before this Court in appeal.
14. The appellant contend that the impugned
judgment is against the law, facts and merits of the case.
It is contended that the learned trial Judge has failed to
note that the Will of V.Thammaiah dated 25-4-1976 was
admitted by trial Court, but failed to appreciate that the
Will of said V.Thammaiah 25-4-1976 was admitted by all
the parties to the suit who are the wife and children of
V.Thammaiah, except the daughter-in-law i.e., defendant
No.2. It is contended that the trial Judge has grossly erred
in not appreciating that the plaintiff has not at all
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challenged the Will and the signature of the testator or the
signature of the witnesses of the Will dated 25-4-1976,
produced at Ex.D3. It is contended that the admissions of
PW1 in respect of Ex.D3 were not properly considered by
the trial Court. Further, it is contended that the learned
trial Judge has grossly erred in not relying on the evidence
of DW3 to prove the Will dated 25-4-1976 when the
signature of the testator was not disputed, but relied
heavily on the affidavit and the indemnity bond produced
at Exs.P16 and P17. It is further stated in the appeal
memo that the Will executed by defendant No.1
Girijamma, was never pleaded by either of the parties and
therefore, the trial Court dealing with the said Will and
terming the same to be the doubtful was not called for. It
is contended that the observations with regard to the Will
of defendant No.1 dated 10-02-1998 deserves to be
expunged, since it is bereft of any claims. Therefore, the
appellant has sought for allowing the appeal and setting
aside the judgment and decree passed by the trial Court
and to dismiss the suit.
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15. On issuance of notice, the plaintiff and the other
respondents have appeared through their counsel before
this Court.
16. After admitting the appeal, the trial Court
records has been secured. The arguments by the learned
counsel appearing for the appellant and the learned
counsel for respondent No.1/plaintiff were heard.
17. The learned counsel appearing for the
appellant/ defendant No.5 contended that :
a) The plaintiff admits in his cross-examination that
there was a Will executed by his father V.Thammaiah and
therefore, there was no necessity for the trial Court to go
into the question of the proof of the Will. He further
contended that the Will, which is at Ex.D3 shows that the
entire property was bequeathed to defendant No.1. The
attesting witness to the said Will was none else than DW3.
It is submitted that DW3 is renowned Criminal Lawyer of
Bangalore and he has in categorical terms stated that he
had drafted the said Will at the instance of deceased
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V.Thammaiah, since he knew Thammaiah very well. It is
contended that the evidence of DW3 clearly establish that
the Will was executed by the father of the plaintiff
V.Thammaiah in the presence of two witnesses and one
among them was a Medical Practitioner.
b) It is submitted that there is nothing in the
evidence of DW3 which would show that there are
suspicious circumstances surrounding Ex.D3 Will.
Therefore, there was no reason for the trial Court to go
into the validity of the Will when PW1 has admitted the
same and that there was sufficient evidence in the form of
DW3-C.H.Hanumantharaya. He further submitted that the
suit property was allotted by BDA on a 20 years lease and
when V.Thammaiah died, said 20 years had lapsed and
thereafter, the sale deed was executed in favour of
defendant No.1. The defendants undertook before BDA
that there is no Will and it was only in continuation of
format which was issued by BDA. Therefore, Exs.P16 and
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P17 cannot be the documents which would render the Will
at Ex.D3 to be a suspicious one.
c) He contends that except Exs.P16 and P17, there is
no other suspicious circumstances that could surface from
the evidence on record. The plaintiff had not averred about
the Will in his pleadings despite he knew about the said
Will. Therefore, there is suppression of fact by the plaintiff
and the plaintiff had not sought for any relief in respect of
the said Will. It is contended that V.Thammaiah died on
25-05-1976 and the Will was executed on 25-04-1976 as
per Ex.D3. Hence, there is no material to show that
V.Thammaiah was not capable of making a testamentary
disposition of the property.
d) It is stated that defendant No.1-Girijamma, died
on 28-05-2006 during the pendency of the suit and she
had executed a Will on 10-02-1998. It is stated that the
suit was filed on 09-10-1998 and the defendants have put
forth the contention that the Will executed by Girijamma
would enure to their benefit and the suit property would
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devolve upon defendant Nos. 4 and 5. Hence, the learned
counsel appearing for the appellant has contended that the
impugned judgment passed by the trial Court is not
sustainable in law and its finding on Ex.D3 is erroneous.
18. Per contra, the learned counsel appearing for
respondent No.1/plaintiff would submit that V.Thammaiah
died on 25-05-1976 and Will was executed 30 days prior
to the date of his death. The suit was filed on 09-10-1998.
It is contended that from the year 1976 to 1998 the Will
had not seen the light of the day. He points out that the
Ex.D3 Will is surrounded with suspicious circumstances.
He points out the lacunae in the testimony of DW3. It is
pointed out that DW3 was also the advocate and he had
identified the plaintiff and defendants in Ex.P15 and P16
which were filed before the BDA. The plaintiff and
defendants had consented for the sale deed to be
executed in favour of defendant No.1 by way of filing a
joint affidavit as well as indemnity bond. In both the
documents, there was a declaration that V.Thammaiah
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had not left behind any Will. Therefore, when in the
affidavit as well as indemnity bond in the form of Exs.P16
and P17 it was stated that V. Thammaiah had not left any
Will, which were signed by none else than DW3, it cannot
be in the mouth of DW3 that, there was a Will executed by
V.Thammaiah. Therefore, he contends that the evidence
of DW3 is not sustainable in law. DW3 is not a layman, but
he was a renowned Criminal Lawyer and therefore, at the
time of signing Exs.P16 and P17, he should have disclosed
about the Will at Ex.D3. Since Ex.D3 was not in existence
on the date when Exs.P16 and P17 were submitted to
BDA, it would point out that Ex.D3 is concocted and
created subsequent to the date of Ex.P16 and Ex.P17. He
further argued that the trial Court discusses issue No.3 in
detail and it has considered the evidence on record and
has rightly come to the conclusion that there are
suspicious circumstances.
19. Regarding the second Will, i.e. the Will of
Girijamma, he submits that there is no pleading on behalf
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defendants in respect of the Will executed by defendant
No.1. After the death of defendant No.1- Girijamma,
defendant Nos. 4 and 5 who were the beneficiaries under
the Will at Ex.D2, should have put forth their pleadings
and sought for an appropriate relief. Therefore, letting in
of the evidence in the form of Ex.D2 is not proper and
correct. However, the trial Court goes on to decide the
Ex.D2 and points out that it is also doubtful. It is also
pointed out by the learned counsel for respondent No.1
that DW4, who is claiming to be the scribe and therefore,
he cannot be an attesting witness. It is pointed out that
the husband of defendant No.5 was an attesting witness to
the said document and therefore, he had taken prominent
role in the creation of the Will as per Ex.D2 and as such,
the correctness of Ex.D2 cannot be believed. Further,
defendant No.1, testatrix was a party to the present suit
and in her written statement, she has not disclosed about
the said Will and also that in clear terms she had stated
that the question of dividing property arises only after the
demise of defendant No.1, if it is in tact even after her
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demise. This averment in the written statement points out
to the fact that, there was no such Will as on the date of
defendant No.1 filing the written statement. Therefore, he
contends that the judgment of the trial Court is proper and
correct and there is no need for interfering with the
findings of the trial Court.
20. In support of his contentions, he relied on the
decision in the case of The Apex Court in the case of H.
Venkatachala Iyengar v. B.N. Thimmajamma,1 He also
relied on the decision in the case of Girija Datt Singh Vs.
Gangotri Datt Singh2 which are concerning about the
manner in which the Will has to be proved. He also relied
on the decision in the case of M.L. Abdul Jabbar Sahib
Vs. H. Venkata Sastri and sons and others etc.,3
concerning the meaning of the attestation. He also relied
on the judgment in the case of Beni Chand (Since dead)
Now by LRs Vs. Smt. Kamla Kunwar and others4. He
also relied on judgment in the case of J.T.Surappa and
1958 SCC OnLine SC 31: AIR 1959 SC 443
AIR 1955 SC 346
AIR 1959 SC 1147
AIR 1977 SC 63
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another Vs. Sri Satchidhanandendra Saraswathi
Swamiji Public Charitable Trust and others5. He also
relied on the judgment in the case of Shashi Kumar
Banerjee and others Vs. Subodh Kumar Banerjee
since deceased and after his legal representatives
and others6. He also relied on the judgment in the case
of N. Kamalam (dead) and another Vs. Ayyasamy
and another7 which are concerning the proof of a Will.
21. After hearing the arguments by learned counsel
for the appellant and respondent No.1, the points that
arise for consideration are:
1. Whether defendants No.1, 3 to 6 have proved that
Thammaiah had executed the Will bequeathing the suit
schedule property to defendant No.1 as per Ex.D3?
2. Whether the trial Court could have decided on the
Will executed by defendant No.1 without any pleadings?
If so, whether defendant Nos. 4 and 5 have proved that
defendant No.1 had executed the Will as per Ex.D2?
3. Whether the impugned judgment of the trial Court
needs to be interfered with?
ILR 2008 Karnataka 2115
AIR 1964 SC 529
AIR 2001 SC 2802
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Re.Point No.1:
22. The main contention of the learned counsel for
the appellant is that the plaintiff has not disputed, and
admitted, the Will at Ex D3 executed by V. Thammaiah
and therefore, the trial Court need not have ventured into
the question of proof of the Will. He submits that the plaint
do not raise any dispute about the Will of V. Thammaiah
and the PW1 in his cross- examination admits the Will.
Therefore, there was no reason for the trial Court to
consider the veracity of the Will at Ex. D3.
23. Though it appears that the proof of the Will was
not in dispute, it must be noted that the plaintiff, in his
pleadings is silent on the Will. He do not deny the Will nor
admit the Will. Therefore, the alleged admission of the Will
by the plaintiff is only in the form of the oral admission in
cross- examination.
24. In the case on hand, the beneficiary of the Will
was none other than the wife of the testator Girijamma,
who is the defendant No. 1. Though she contended about
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the Will in her pleadings, she could not survive to be a
propounder of the Will and lead evidence in that regard.
Therefore, the beneficiary under the Will was no more
when the evidence was led.
25. Thus the question is, whether the Court has to
get satisfied itself about the Will or has to rely on the
evidence of the parties, who have led the evidence in
support of the Will and the other lends a half hearted
admission in the cross examination?
26. The Apex Court in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma,8 has held as below.
"18. .......... 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
1958 SCC OnLine SC 31: AIR 1959 SC 443
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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. ............. 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.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
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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. ................ 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.
20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that
the signature, in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in
the will may appear to be unnatural, improbable or
unfair in the light of relevant circumstances; or, the
will may otherwise indicate that the said
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dispositions may not be the result of the testator's
free will and mind. In such cases the court would
naturally expect that all legitimate suspicions
should be completely removed before the
document is accepted as the last will of the
testator. ............
It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in
respect of the execution of the will propounded,
such pleas may have to be proved by the
caveators; but, even without such pleas
circumstances may raise a doubt as to whether the
testator was acting of his own free will in executing
the will, and in such circumstances, it would be a
part of the initial onus to remove any such
legitimate doubts in the matter.
21. ........... It is in connection with wills that present
such suspicious circumstances that decisions of
English courts often mention the test of the
satisfaction of judicial conscience. It may be that
the reference to judicial conscience in this
connection is a heritage from similar observations
made by ecclesiastical courts in England when they
exercised jurisdiction with reference to wills; but
any objection to the use of the word "conscience"
in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test
merely emphasizes that, in determining the
question as to whether an instrument produced
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before the court is the last will of the testator, the
court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by
the testator who is no longer alive.
22. ............... It may, however, be stated generally
that a propounder of the will has to prove the due
and valid execution of the will and that if there are
any suspicious circumstances surrounding the
execution of the will the propounder must remove
the said suspicions from the mind of the court by
cogent and satisfactory evidence. ................ It is
quite true that, as observed by Lord Du Parcq
in Harmes v. Hinkson [(1946) 50 CWN 895] "where
a will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge,
even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is never
required to close his mind to the truth". It would
sound platitudinous to say so, but it is nevertheless
true that in discovering truth even in such cases
the judicial mind must always be open though
vigilant, cautious and circumspect."
(underlining by me)
27. The above case is relied, referred and followed
in more than 150 judgments across the country by the
Apex Court and various High Courts.
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28. This view was reiterated by this Court in the
case of J.T. Surappa v. Satchidhanandendra Saraswathi
Swamiji Public Charitable Trust,9 where after referring to
Thimmajamma's case, the Court laid down the five steps
to be followed by the Courts. Obviously, it was a case
where Probate was sought.
"24. Therefore, the court has to tread a careful
path in the enquiry to be conducted with regard to
Will. The said path consists of five steps
"PANCHAPADI". The path of enquiry and steps to be
traversed are as under:--
(1) Whether the Will bears the signature or mark of
the testator and is duly attested by two witnesses
and whether any attesting witness is examined to
prove the Will?
(2) Whether the natural heirs have been disinherited?
If so, what is the reason?
(3) Whether the testator was in a sound state of mind
at the time of executing the Will?
(4) Whether any suspicious circumstances exist
surrounding the execution of the Will?
(5) Whether the Will has been executed in accordance
with Section 63 of the Indian Succession Act, 1925,
read with Section 68 of the Evidence Act?"
2008 SCC OnLine Kar 188 : ILR 2008 Kar 2115
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29. The Apex Court by relying on the judgment of
Thimmajamma's case, in a recent judgment in
Shivakumar v. Sharanabasappa10 (supra), has held as
below.
"12. For what has been noticed hereinabove, the
relevant principles governing the adjudicatory
process concerning proof of a will could be broadly
summarised as follows:
12.1. Ordinarily, 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.
Alike the principles governing the proof of other
documents, in the case of will too, the proof with
mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession
Act, a will is required to be attested, it cannot 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 capable of giving evidence.
12.3. The unique feature of a will is that it speaks
from the death of the testator and, therefore, the
maker thereof is not available for deposing about
the circumstances in which the same was executed.
(2021) 11 SCC 277
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This introduces an element of solemnity in the
decision of the question as to whether the
document propounded is the last will of the
testator. The initial onus, naturally, lies on the
propounder but the same can be taken to have
been primarily discharged on proof of the essential
facts which go into the making of a will.
12.4. The case in which the execution of the will is
surrounded by suspicious circumstances stands on
a different footing. The presence of suspicious
circumstances makes the onus heavier on the
propounder and, therefore, in cases where the
circumstances attendant upon the execution of the
document give rise to suspicion, the propounder
must remove all legitimate suspicions before the
document can be accepted as the last will of the
testator.
12.5. If a person challenging the will alleges
fabrication or alleges fraud, undue influence,
coercion et cetera 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 give rise to the doubt or as to whether the will
had indeed been executed by the testator and/or as
to whether the testator was acting of his own free
will. In such eventuality, it is again a part of the
initial onus of the propounder to remove all
reasonable doubts in the matter.
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12.6. A circumstance is "suspicious" when it is not
normal or is "not normally expected in a normal
situation or is not expected of a normal person". As
put by this Court, the suspicious features must be
"real, germane and valid" and not merely the
"fantasy of the doubting mind".
12.7. As to whether any particular feature or a set
of features qualify as "suspicious" would depend on
the facts and circumstances of each case. A shaky
or doubtful signature; a feeble or uncertain mind of
the testator; an unfair disposition of property; an
unjust exclusion of the legal heirs and particularly
the dependants; an active or leading part in making
of the will by the beneficiary thereunder et cetera
are some of the circumstances which may give rise
to suspicion. The circumstances above noted are
only illustrative and by no means exhaustive
because there could be any circumstance or set of
circumstances which may give rise to legitimate
suspicion about the execution of the will. On the
other hand, any of the circumstances qualifying as
being suspicious could be legitimately explained by
the propounder. However, such suspicion or
suspicions cannot be removed by mere proof of
sound and disposing state of mind of the testator
and his signature coupled with the proof of
attestation.
12.8. The test of satisfaction of the judicial
conscience comes into operation when a document
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propounded as the will of the testator is surrounded
by suspicious circumstance(s). While applying such
test, the court would address itself to the solemn
questions as to whether the testator had signed the
will while being aware of its contents and after
understanding the nature and effect of the
dispositions in the will?
12.9. In the ultimate analysis, where the execution
of a will is shrouded in suspicion, it is a matter
essentially of the judicial conscience of the court
and the party which sets up the will has to offer
cogent and convincing explanation of the suspicious
circumstances surrounding the will."
(Underlining by me)
30. It is relevant to note that the Apex Court and
this Court were conscious of the fact that even if there is
no contest to the Will, as in the case of Probate
proceedings, the conscience of the Court must be satisfied
before upholding the Will brought before the Court. It is in
this background that the evidence on record needs to be
appreciated by this Court.
31. DW1 in her affidavit states that her father had
executed the Will as per Ex D3. She do not explain how
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the she came to know about the Will. Even the Written
Statement of defendant No.1 does not mention how and
when she came in custody of the Will. In the cross-
examination of DW1, it is elicited that she do not know
anything about the affidavit and the indemnity bond which
are at Exs.P16 and P17. She denies any such documents
signed by her. She denies the suggestion that Ex.D3 Will
was created subsequent to the absolute Sale Deed
executed by BDA as per Ex.D1. However, she admits her
signature on Exs.P16 and P17.
32. The testimony of DW2 also shows that she
admits her signature on Exs.P16 and P17 and she denies
that Ex.D3 is created subsequent to Ex.D1 -sale deed, to
grab the property. Much of the cross-examination is in
respect of the Ex.D2.
33. The DW3 -C. H. Hanumatharaya, states that he
prepared the Will as per Ex.D3 and got it typed from
Ramanuja. Curiously, he categorically states that he had
gone through the contents of Exs. P16 and P17 before he
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had signed on them, but denies that they are contrary to
Ex. D3 Will. Further, he denies that Ex D3. is brought into
existence after Exs.P16 and P17 were submitted to BDA.
Evidently, the testimony of DW.3 do not explain this
circumstance. He was not a layman. Therefore, the
conclusion of the trial Court that the evidence of DW3
suffer from credibility cannot be found fault with.
34. It is settled principles of law that the Appellate
Court cannot replace the view taken by the trial Court
simply because another view is possible. The trial Court
had the advantage of seeing the demeanour of the
witnesses.
35. The above view of this Court is fortified by the
recent judgment of the Apex Court in the case of V.
Prabhakara v. Basavaraj K.11, where in it is noted as
below:
"22. The first appellate court while
exercising power under Section 96 can re-do
(2022) 1 SCC 115
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the exercise of the trial court. However, such a
power is expected to be exercised with caution.
The reason being, the trial court alone has the
pleasure of seeing the demeanor of the
witness. Therefore, it has got its own
advantage in assessing the statement of the
witnesses which may not be available to the
appellate court. In exercising such a power,
the appellate court has to keep in mind the
views of the trial court. If it finds that the trial
court is wrong, its decision should be on the
reasoning given. A mere substitution of views,
without discussing the findings of the trial
court, by the appellate court is not permissible.
If two views are possible, it would only be
appropriate to go with the view expressed by
the trial court. While adopting reasoning in
support of its findings, the appellate court is
not expected to go on moral grounds alone.
23. The aforesaid views expressed by us
are nothing but a reiteration of the settled
principle of law as could be seen through the
following paragraphs of the decision rendered
by this Court in Jagdish Singh v. Madhuri Devi
[(2008) 10 SCC 497]"
36. The trial Court held that, the Will at Ex.D3
executed by V.Thammaiah, is not proved as the suspicious
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circumstances under which it surfaced, particularly, after
Exs.P16 and P17 were furnished to BDA in the year 1998,
are not explained by the defendants. It has disbelieved the
evidence of DW3 C.H.Hanumantharaya, since he does not
explain Exs.P16 and P.17. It also came to the conclusion
that the suit schedule property was the self acquired
property of V.Thammaiah, and there was no dispute
between the parties about the nature of the property.
Thus, it held that plaintiff is entitled for 1/6th share in the
suit schedule property. No fault can be found in respect of
the conclusions in granting equal share to the plaintiff.
Hence, there is no need to interfere with the decree
passed by the trial Court. In the result, this court also
comes to the conclusion that the defendants have failed to
prove Ex. D3, the Will executed by Thammaiah. Hence the
Point No. 1 is answered in the negative.
37. The learned counsel appearing for the plaintiff
has contended that there is no pleading in respect of the
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Will executed by defendant No.1 Girijamma either in the
written statement of defendants No.3 to 6 or in the plaint.
No issues were framed in respect of the aid Will of
defendant No.1, marked at Ex.D2. Even then the evidence
in respect of the Will Ex.D2 was let in by the defendants
No. 3 to 6 by examining the scribe as DW4. He contends
that the trial Court could not have dealt with the Ex.D2 as
it was bereft of any pleadings. Even if the evidence of
DW4 is considered, he is only a scribe, but not the
attesting witness of Ex.D2 and therefore, there was no
need for considering the Ex.D2.
38. Per contra, learned counsel appearing for the
appellant contend that Ex.D2 being a document executed
by defendant No.1, could have been considered by the
trial Court and the finding of the trial Court regarding
Ex.D2 is not proper and correct.
39. It is settled principle of law that evidence has to
be led on the basis of the pleadings. Any evidence without
pleadings and issues, is not permissible. The basic
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principle of a civil trial is that a fact must be pleaded and
evidence to be adduced to prove such facts. There are
umpteen number of precedents in this regard. A latest
decision of the Apex Court in the case of Srinivas
Raghavendrarao Desai Vs. V. Kumar Vamanrao @
Alok12 relies upon the judgment of the Apex Court in the
case of Bhagwati Prasad v. Chandramaul13 to reiterate
that evidence has to be led on the pleadings. A fact which
is not pleaded cannot be considered even though there is
evidence. In Bhagwati Prasad's case referred supra, it
was held as below:
"10. But in considering the application of this
doctrine to the facts of the present case, it is
necessary to bear in mind the other principle that
considerations of form cannot over-ride the
legitimate considerations of substance. If a plea is
not specifically made and yet it is covered by an
issue by implication, and the parties knew that the
said plea was involved in the trial, then the mere fact
that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party
(2024) 3 SCR 46; 2024 INSC 165 dated 4-3-2024
AIR 1966 SC 735
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from relying upon it if it is satisfactorily proved by
evidence. The general rule no doubt is that the relief
should be founded on pleadings made by the parties.
But where the substantial matters relating to the title
of both parties to the suit are touched, though
indirectly or even obscurely, in the issues, and
evidence has been led about them, then the
argument that a particular matter was not expressly
taken in the pleadings would be purely formal and
technical and cannot succeed in every case. What
the Court has to consider in dealing with such an
objection is : did the parties know that the matter in
question was involved in the trial, and did they lead
evidence about it? If it appears that the parties did
not know that the matter was in issue at the trial
and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly would be
a different matter. To allow one party to rely upon a
matter in respect of which the other party did not
lead evidence and has had no opportunity to lead
evidence, would introduce considerations of
prejudice, and in doing justice to one party, the
Court cannot do injustice to another."
40. It is pertinent to note that in the case on hand,
defendant No.1 died during the pendency of the suit. In
her written statement, there was no such disclosure of the
Will executed by her in the year 1988. Defendants No. 4
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and 5 who are the beneficiaries under the said Will of
defendant No.1 did not amend their written statement to
incorporate their claim under the Will of defendant No.1.
Therefore, the plaintiff had no occasion to contradict the
said Will by way of his pleadings. Further, there were no
issues concerning the Will of defendant No.1. Plaintiff
could not put forth his contention in respect of the Will of
defendant No.1 which is at Ex.D2. Thus, it is evident that
the defendants have led evidence without there being
pleadings on their behalf, an opportunity being given to
plaintiff to make his pleadings and also without there
being any issue in that regard. Therefore, the evidence
concerning the Will of defendant No.1 at Ex.D2 was not in
issue for determination before the trial Court.
41. The trial Court while considering issue No.1
concerning the share of the plaintiff, deals with the Will of
defendant No.1 and the evidence let in by the defendants.
It comes to the conclusion that DW4 is a scribe of the Will
at Ex.D2, but he is not a attesting witness. Therefore, it
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discards his evidence and holds that the defendants have
not proved the said Will. Such a finding was unnecessary
in view of absence of any pleadings or issues in that
regard. At the most, such a finding of the trial Court can
only be construed that it was for the purpose of
determining the share of the parties. Hence, the finding of
the trial Court in respect of Ex.D2 and regarding its proof
cannot be considered at all.
42. In that view of the matter, the point No.2 raised
by this Court has to be answered in the negative. As a
consequence, there is no need to consider point No.3 also.
The conclusions of the trial Court so far as the finding on
the Will executed by defendant No.1 cannot be of any
relevance, since there was no pleading or the issue in that
regard. Hence, this Court has to brush aside the findings
of the trial Court in respect of Ex.D2 while maintaining the
decree passed by the trial Court. The suit schedule
property devolves upon the plaintiff and all the children of
V.Thammaiah by virtue of intestate succession. Therefore,
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the plaintiff, defendant Nos. 3 to 6 and husband of
defendant No.2 are entitled for equal share. Therefore,
the appeal fails. Hence, the following:
ORDER
The appeal is dismissed.
The judgment and decree of the trial Court passed in
OS No. 7841/1998 dated 08-09-2009 is hereby confirmed.
Costs made easy.
Sd/-
JUDGE
tsn*
