Karnataka High Court

Smt. Channamma W/O Mahantappa vs Ramana Gouda S/O Baburaopatil on 15 February, 2024

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                                                RSA No. 200045 of 2020
                                            C/W RSA No. 200044 of 2020



                      IN THE HIGH COURT OF KARNATAKA,
                              KALABURAGI BENCH


                 DATED THIS THE 15TH DAY OF FEBRUARY, 2024


                                    BEFORE
                    THE HON'BLE MR. JUSTICE E.S.INDIRESH


                 REGULAR SECOND APPEAL NO. 200045 OF 2020
                                (DEC/INJ)
                                   C/W
                 REGULAR SECOND APPEAL NO. 200044 OF 2020

             IN RSA NO.200045 OF 2020
             BETWEEN:

             SMT.CHANNAMMA
             W/O MAHANTAPPA,
             AGED ABOUT 67 YEARS,
             OCC:HOUSEHOLD & AGRICULTURE,
             R/O: MATHI VILLAGE,
             TQ:CHITTAPUR,
             DIST: KALABURAGI-585101.
                                                           ...APPELLANT
Digitally
signed by    (BY SRI. SANJEEVKUMAR C.PATIL, ADVOCATE)
SACHIN
Location:
HIGH COURT
             AND:
OF
KARNATAKA    RAMANA GOUDA
             S/O BABURAO PATIL,
             ALLEGED ADOPTED SON OF BASAMMA,
             AGED ABOUT 41 YEARS,
             OCC : PRIVATE PERSON,
             R/O: MARUTHI MANDVI MOTORS PVT. LTD.,
             SERVICE STATION, J.P.NAGAR,
             BANGALORE-12.
                                                         ...RESPONDENT
             (BY SRI.AMEET KUMAR DESHPANDE, SENIOR ADVOCATE FOR
             SRI.GANESH NAIK, ADVOCATE)
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                                  NC: 2024:KHC-K:1566
                                   RSA No. 200045 of 2020
                               C/W RSA No. 200044 of 2020



     THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
05.02.2019 PASSED BY THE IV ADDL.DIST & SESSIONS JUDGE
AT KALABURAGI, SITTING AT SEDAM IN R.A.NO.127/2011 AND
JUDGMENT AND DECREE DATED 26.09.2011, PASSED BY THE
SENIOR CIVIL JUDGE SEDAM, IN O.S.NO.47/2008, AND
DECREE THE SUIT OF PLAINTIFF BY ALLOWING THIS APPEAL.


IN RSA NO.200044 OF 2020

BETWEEN:

SMT. CHANNAMMA
W/O MAHANTAPPA,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD & AGRICULTURE,
R/O: MATHI VILLAGE,
TQ: CHITTAPUR,
DIST:KALABURAGI-585101.
                                              ...APPELLANT
(BY SRI. SANJEEVKUMAR C.PATIL, ADVOCATE)
AND:

RAMANA GOUDA S/O BABURAO PATIL,
ALLEGED ADOPTED SON OF BASAMMA,
AGED ABOUT 41 YEARS,
OCC: PRIVATE PERSON,
R/O: MARUTHI MANDVI MOTORS PVT.LTD.,
SERVICE STATION, J. P.NAGAR,
BANGALORE-01.
                                            ...RESPONDENT
(BY SRI.AMEETKUMAR DESHPANDE, SENIOR ADVOCATE FOR
SRI.GANESH NAIK, ADVOCATE)
     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
05.02.2019 PASSED BY THE IV ADDL. SESSIONS JUDGE, AT
KALABURAGI, SITTING AT SEDAM, IN R.A.NO.119/2011 AND
JUDGMENT AND DECREE DATED 26.09.2011, PASSEED BY THE
SENIOR CIVIL JUDGE, SEDAM, IN O.S.NO.47/2008, BY
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                                            RSA No. 200045 of 2020
                                        C/W RSA No. 200044 of 2020



ALLOWING THIS APPEAL AND DECREE THE SUIT OF THE
PLAINTIFF.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

In these appeals, plaintiff/appellant is assailing the

judgment and decree dated 05.02.2019 in

R.A.No.119/2011 and R.A.No.127/2011 on the file of IV

Additional Sessions Judge at Kalaburagi (sitting at Sedam)

against the judgment and decree dated 26.09.2011 in

O.S.No.47/2008 on the file of Senior Civil Judge, Sedam,

dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties in the

appeal shall be referred to in terms of their status and

ranking before the Trial Court.

3. It is the case of the plaintiff that, Ramrao Police

Patil, propositus had two wives namely, Ujjamma and

Basamma. Ujjamma had a son Gurulingappa, died leaving

behind his wife Sangamma. Gurulingappa had four

daughters namely 1) Shakuntala, 2) Sharadabai,

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3) Suvarna and 4) Savitri. Smt.Shakuntala is the natural

mother of Ramanagouda, (Defendant). Basamma - second

wife of Ramrao Police Patil had a daughter Channamma

(plaintiff) who had four children 1) Gurulingappa,

2) Devendrakumar, 3) Annappa and 4) Rajshekar.

4. It is the case of the plaintiff that the plaintiff is

the only daughter of late Basamma and the schedule

property is exclusive possession of her mother Basamma.

It is further stated in the plaint that there was a family

arrangement in the family and accordingly properties were

devolved among the children/grandchildren of wives of

Ramrao Police Patil. It is stated in the plaint that, daughter

of late Gurulingappa i.e., Shakuntala had a son -

Ramanagouda (defendant) and the said child was given in

adoption to late Basamma, without the consent of late

Basamma and the registered adoption deed was executed

on 05.09.1988. It is the case of the plaintiff that adoption

is illegal and accordingly challenged the adoption deed

referred to above. Accordingly, plaintiff has filed

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O.S.No.47/2008 on the file of Trial Court seeking

declaration with consequential relief of permanent

injunction, challenging the adoption deed dated

05.09.1988 as illegal and non est.

5. After service of notice, the defendant entered

appearance and filed detailed written statement denying

the averments made in the plaint relating to deed of

adoption referred to above and it is the specific case of the

defendant that late Basamma had executed a Will,

bequeathing the schedule property in favour of the

defendant and the said Will was presented for registration

on 24.05.1993 however, the said Will was not registered,

on account of objection raised by the Registrar, for want of

stamp duty and the matter was referred to the District

Registrar and accordingly, it is the defence of the

defendant that the schedule property has been

bequeathed to the defendant by his adoptive mother - late

Basamma. Accordingly, defendant sought for dismissal of

the suit.

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6. The Trial Court on the basis of the pleadings,

framed the issues for its consideration.

7. In order to establish their case, plaintiff

examined herself as PW.1 and produced 13 documents

and marked as Ex.P.1 to Ex.P.13 and defendant has

examined four witnesses as DW.1 to DW.4 and marked

three documents as Ex.D1 to Ex.D3.

8. The Trial Court after considering the material on

record, vide judgment and decree dated 26.09.2011,

dismissed the suit of the plaintiff. Being aggrieved by the

same, the plaintiff has preferred the appeal in

R.A.No.119/2011 before the First Appellate Court and the

appeal was resisted by the defendant.

9. On the other hand, the Trial court has framed

Issue No.4 relating to the validity of Will dated 24.05.1993

and answered the same in favour of the plaintiff holding

that the defendant has not proved the Will dated

24.05.1993 and accordingly, the defendant has filed

R.A.No.127/2011 before the First Appellate Court and

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same was resisted by the plaintiff. The First Appellate

Court after considering the material on record, dismissed

the appeal filed by the plaintiff in R.A.No.119/2011 and

allowed the appeal in R.A.No.127/2011 filed by the

defendant challenging the finding on Issue No.4 and

feeling aggrieved by the same, plaintiff has preferred

these two appeals.

10. I have heard learned counsel Sri Sanjeevkumar

C.Patil, appearing for the appellant and Sri Ameetkumar

Deshpande, learned Senior counsel appearing on behalf of

Sri Ganesh Naik, for the respondent.

11. Sri Sanjeevkumar C. Patil, learned counsel

appearing for the appellant raised three fold submission

that the adoption of the defendant by late Basamma is

contrary to law and therefore sought for interference of

this Court. In order to emphasize on the execution of the

Will dated 24.05.1993, learned counsel appearing for the

appellant argued that the schedule properties are situate

at Sedam taluk and late Basamma was residing nearer to

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Sedam and therefore, there was no necessity for late

Basamma to execute the Will at Gulbarga and accordingly

submitted that the propounder of the Will has not removed

the suspicious circumstances and accordingly he sought

for interference of this Court.

12. He also submitted that the plaintiff is the only

daughter to late Basamma and therefore there is no

occasion for late Basamma to bequeath the entire property

in favour of the defendant, who is muchless an adopted

son and accordingly excluding a legal heir and

bequeathing the property in favour of the adopted child is

one of the elements to create a doubt to look into the

veracity of the Will and accordingly sought for interference

of this Court.

13. Lastly it is contended by Sri Sanjeevkumar

C.Patil, learned counsel appearing for the appellant that

though the Will was presented for registration, however

the formalities have not been completed on account of

deficit payment of stamp duty and in this regard, notice

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has been issued by the competent authority to the

executant of the Will, however, the executant of the Will

has not appeared before the competent authority, which

would establish the fact that, late Basamma was not

intended to bequeath the schedule property in favour of

defendant and accordingly sought for interference of this

Court.

14. Per contra, Sri Ameetkumar Deshpande,

learned Senior counsel appearing on behalf of Sri Ganesh

Naik, for the respondent contended that the plaintiff is

neither a adoptive parent nor an adopted parent and

therefore the plaintiff has no locus standi to challenge the

adoption deed dated 20.04.1988. He further invited the

attention of the Court to the recitals in the Will dated

24.05.1993 (Ex.D1) and argued that testator-Basamma,

was residing at Kale Layout, Brahmapur, Gulbarga on the

date of execution of the Will (Ex.D1) and further he invited

the attention of the Court to paragraph 4 in the said Will

and argued that the intention of the testator was to

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bequeath the entire property in favour of defendant to

effectuate the spiritual benefit etc., and therefore

contended that both the Courts below have rightly

dismissed the suit of the plaintiff.

15. Learned Senior Counsel further argued that the

finding record by Trial Court on Issue No.4 is contrary to

the judgment rendered by this Court as well as the Hon'ble

Supreme Court relating to Section 63 of Indian Succession

Act and Section 68 of Evidence Act, as the defendant has

examined DW.2 and DW.3, who were the witnesses to the

execution of the Will dated 24.05.1993 and therefore

sought for dismissal of the appeals filed by the

plaintiff/appellant.

16. In the light of the submission made by the

learned counsel appearing for the parties, I have carefully

examined the finding recorded by both the Courts below.

Perused the original records.

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17. In order to ascertain the relationship between

the parties, the Genealogical tree of the parties is relevant

to adjudicate the appeals, which reads as under :

Ramrao Police Patil Deceased Wives

Ujjamma (Wife) (Died) Bassamma (Wife) (Died)

Gurulingappa (Died) Channamma (Daughter) Plaintiff Sangamma (Wife)

Shakuntala Shardabai Suverna Savitri W/o Baburao

Ramangouda Gurulingappa Devendra- Annappa Rajaseker (Alleged adopted son) Kumar Defendant

Perusal of the genealogy of the parties would indicate that

original propositus Ramrao Police Patil had two wives,

Ujjamma and Basamma. Defendant is the son of

Shakuntala (grand daughter of Ujjamma). Plaintiff is the

daughter of late Basamma.

18. Perusal of the record would indicate that the

defendant was given in adoption to late Basamma as per

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registered adoption deed dated 20.04.1988 (Ex.P1).

Undisputably, the plaintiff is the daughter of the adoptive

mother-Basamma. This Court in the case of

Veerabhadrayya R. Hiremath and others v. Irayya

A.F. Basayya Hiremath1, at paragraph 12 held as

follows:-

"12. But I am unable to accept the arguments advance by the Learned Counsel for the appellants for the following reasons:

The appellant admits the execution of the adoption deed taking the defendant in adoption by Basayya. According to the appellant the adoption deed as per Ex.D1 came into existence by playing fraud on deceased Basayya. According to him, Basayya died six years prior to the institution of the suit. It is also his case that he came to know of adoption of the defendant by Basayya in the year 1979. The suit was filed in the year 1992. If Basayya died six years prior to the institution of the suit, in all probabilities Basayya was alive till 1986. If plaintiff had come to know of the adoption deed in the year 1979, if really adoption deed had been obtained by the defendant by playing fraud on

ILR 2006 KAR 1740

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Basayya, there was no difficulty for the appellant- plaintiff to request Basayya to challenge the adoption deed contending that the same was obtained by misrepresentation or fraud. But such an action has not been taken by the plaintiff, requesting Basayya to file a suit to challenge the adoption deed. Admittedly, the suit is filed six years after the death of Basayya and 13 years after coming to know of the adoption of the defendant by Basayya. In the normal circumstances, adoption can be challenged either by the natural parents of the boy or by the adoptive parents or by the child who has been given in adoption. But in the instance case, the plaintiff is a stranger to the defendant. If really, a fraud had been played on Basayya, it was for Basayya to file a suit for cancellation of the adoption. The very fact that the plaintiff had not requested Basayya to file a suit for cancellation on the ground that Ex.D1 had come into existence on account of the fraud played by Police-Patil of Astakatti village on Basayya, it is not open for the plaintiff to challenge the adoption of defendant, six years after the death of Basayya. In other words, this Court is of the opinion there is no cause of action for the plaintiff to file the suit."

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Following the declaration of law made by this Court in

Veerabhadrayya R.Hiremath's case (supra), plaintiff is

neither a adoptive parent of defendant nor a natural

parent and therefore as the adoption deed is registered

document on 20.04.1988 and the suit is filed on

12.11.2008, after period of 20 years and therefore there is

no iota of doubt to accept the validity of the registered

adoption deed (Ex.D1).

19. Insofar as the argument advanced by the

learned counsel appearing for the appellant relating to

prove the Will dated 24.05.1993, the Hon'ble Supreme

Court in the case of H. Venkatachala Iyengar vs. B. N.

Thimmajamma & Others2, paragraphs 18 to 20, 22

reads as under:-

"(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

AIR 1959 SC 443

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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 S.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 Ss.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, Ss. 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

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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 S. 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

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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.

(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

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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 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. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document 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.

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(21) xxx

(22) It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. 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 hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 P C

156) "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

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judicial mind must always be open though vigilant, cautious and circumspect."

In the case of Murthy and others vs. C.Saradambal

and others3, Hon'ble Supreme Court at paragraph

Nos.31 to 39 held as follows :-

"31. One of the celebrated decisions of this Court on proof of a will, in H.Venkatachala Iyenger vs. B.N.Thimmajamma reported in AIR 1959 SC 443 is in H.Venkatachala Iyenger vs. B.N.Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under AIR p.451, para 18)

"18. ... 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

(2022) 3 SCC 209

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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

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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."

32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.

33. In the above noted case, this Court has stated that the following three aspects must be proved by

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a propounder : (Bharpur Singh Case [(2009) 3 SCC 687:

(2009) 1 SCC (Civ) 934], SCC p.696, para 16

"16. ... (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

(ii) 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 propounder, and

(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein."

34. In Jaswant Kaur v. Amrit Kaur and others [(1977) 1 SCC 369], this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the Court's conscience and then,

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the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.

35. In Bharpur Singh v. Shamsher Singh [(2009) 3 SCC 687: (2009)1 SCC (Civ.) 934], this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner (SCC p.699, para 23)

"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate

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provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the testator's free will and mind.

(v) The propounder takes a prominent part in the execution of the will.

(vi) The testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts."

36. It was further observed in Shamsher Singh Case [(2009) 3 SCC 687: (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.

37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC], in Paras 34 to 37, this Court has observed as under: (SCC pp. 447-48)

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"34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:

(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;

(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.

35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B.Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449], wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.

36. The proof of a will is required not as a ground of reading the document but to afford the

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Judge reasonable assurance of it as being what it purports to be.

37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."

38. This Court in Anil Kak v. Sharada Raje, [(2008) 7 SCC 695], held as under: [Bharpur Singh case

- (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934, SCC p.698, para 29]

"20. This Court in Anil Kak v. Sharada Raje [Bharpur Singh case - (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p.714, paras 52-55)

'52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the

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execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.

54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.

55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.'"

39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan, [(2014) 15 SCC 570 : (2015) 4 SCC (Civ) 267], this Court opined as under: (SCC p.576, para 13)

"13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution

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will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us." "

20. Section 63(C) of Indian Succession Act 1925,

provides that Will has to be attested by two or more

witnesses/attesters, each of whom should have seen the

testator signed on the Will in their presence or as received

from the testator, a personal acknowledgment of his

signature on the Will. Secondly, the requirement of law

that each of the witnesses shall sign on the Will in the

presence of the testator, but it shall not be necessary that

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more than one witness be present at the same time and

no particular form of attestation is necessary. These

aforesaid two mandatory requirements are complied with

for a testament to be valid from the point of view of its

execution.

21. In the present case DW.2 and DW.3 are the

attesting witnesses to the Will and DW.4 is the scribe of

the Will dated 24.05.1993 has deposed about the

execution of the Will by late Basamma. In that view of the

matter, I am of the view that the defendant, being a

propounder of the Will has proved the execution of the Will

bequeathing the schedule property to the defendant.

22. Insofar as argument advanced by Sri

Sanjeevkumar C.Patil, that the testator has excluded the

legal heir-plaintiff, who is the only daughter to the

testator and therefore sought to defend the case of the

plaintiff. In this regard, Hon'ble Supreme Court in the case

of Swarnalatha and others v. Kalavathy and others4

AIR 2022 SC 1585

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has held that exclusion of one of natural heirs from

bequest cannot by itself a ground to hold that there are

suspicious circumstances. Paragraph 21 of the

aforementioned judgment reads as under :-

"21. When it was not even the case of the respondents that the testators were not in a sound and disposing state of mind, the High Court found fault with the appellants for not disclosing the nature of the aliments suffered by them. The exclusion of one of the natural heirs from the bequest, cannot be itself be a ground to hold that there are suspicious circumstances. The reasons given in Exhibit P-1 are more than convincing to show that the exclusion of the daughter has happened in a very natural way. If Exhibit P-1 (Will) had been fabricated on blank papers containing the signatures of the mother, there would have been no occasion for the father to make a mention in his own Will (Exhibit P-2) about the execution of the Will by the mother."

23. In that view of the matter, looking into the

finding recorded by both the Courts below, undoubtedly

the plaintiff was married long back and execution of the

Will by late Basamma was on 24.05.1993 and late

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Basamma died on 04.02.2008 and that apart the

defendant was taken in adoption by late Basamma on

20.04.1998 makes it clear that as the recitals in the Will

dated 24.05.1993, reflects that the defendant was residing

with the testator-Basamma and taking care of her needs,

would makes it clear that the finding recorded by both the