Karnataka High Court
Dundappa S/O Shivappa Agadi vs Smt Chanabasawwa W/O Irappa ... on 1 March, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 2290 of 2006
C/W RSA.CROB No. 100001 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
R
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 2290 OF 2006 (DEC/INJ-)
C/W
RSA CROSS OBJ NO. 100001 OF 2015
IN RSA NO.2290/2006:
BETWEEN:
1. DUNDAPPA S/O. SHIVAPPA AGADI,
AGE: 79 YEARS, OCC: AGRICULTURE,
R/O. JINNUR, TQ: KALAGHATGI-581204,
DIST: DHARWAD-580010.
SINCE DECEASED BY HIS LRS.
1(a) SMT. BASAVANNAWWA W/O LATE DUNDAPPA AGADI
AGE: 65 YEARS, OCC: HOUSEHOLD.
1(b) SRI. BASAVARAJ A/F DUNDAPPA AGADI
AGE: 40 YEARS,
Digitally signed BOTH ARE R/O JINNUR,
by SUJATA TQ: KALAGHATAGI-581204,
SUBHASH DIST: DHARWAD.
PAMMAR ...APPELLANTS
Location: HIGH
COURT OF (BY SRI. ABHISHEK B MAREPPAGOL, ADVOCATE FOR
KARNATAKA SRI. MADANMOHAN M KHANNUR, ADVOCATE)
AND:
SMT. CHANABASAWWA W/O. IRAPPA HUTGANNAVAR
AGE: 59 YEARS, OCC: AGRICULTURE AND HOUSE HOLD,
R/O. BACHANAKI, TA: MUNDAGOD-581349.
DIST: UTTAR KANNADA.
...RESPONDENT
(BY SRI. V G BHAT, ADVOCATE)
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RSA No. 2290 of 2006
C/W RSA.CROB No. 100001 of 2015
THIS RSA IS FILED UNDER SETION 100 OF CPC PRAYING THIS
HON'BLE COURT TO SET ASIDE THE JUDGEMENT AND DECREE
DATED 23.02.2006 PASSED IN R.A.NO.160/2002 ON THE FILE OF
THE III ADDL. CIVIL JUDGE (SR.DN) & CJM, DHARWAD, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 31.07.2002 IN O.S 63/1997 PASSED BY THE COURT
OF CIVIL JUDGE (JR. DN.) & JMFC, KALGHATAGI.
IN RSA CROSS OBJ NO.100001/2015:
BETWEEN:
SMT. CHANABASAWWA W/O IRAPPA HUTGANNAVAR
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O: JINNUR, TQ: KALAGHATAGI,
DIST:DHARWAD ALSO AT BACHANKI,
TQ: MUNDGOD, DIST: UTTAR KANNADA.
...CROSS OBJECTOR
(BY SRI. V G BHAT, ADVOCATE)
AND:
DUNDAPPA SHIVAPPA AGADI
SINCE DECEASED BY HIS LRs.
1. SMT. BASAVANNEVVA W/O. LATE DUNDAPPA AGADI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: JINNUR, TQ: KALAGHATAGI,
DIST: DHARWAD-581204.
2. SRI. BASAVARAJ A/F. LATE DUNDAPPA AGADI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: JINNUR, TQ: KALAGHATAGI-581204.
...RESPONDENTS
(BY SRI. ABHISHEK B MAREPPAGOL, ADVOCATE FOR
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RSA No. 2290 of 2006
C/W RSA.CROB No. 100001 of 2015
SRI. MADANMOHAN M KHANNUR, ADVOCATE)
THIS RSA CROB IN RSA NO.2290/2006 FILED UDNER ORDER
41 RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
23.02.2006 PASSED IN R.A.NO.160/2022 BY THE III ADDL. CIVIL
JUDGE (SR.DN.), & CJM, DHARWAD PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
31.07.2002 AND THE DECREE PASSED IN O.S. NO.63/1997 ON THE
FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC., KALAGHATAGI
DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. RSA 2290/2006 is filed by the defendant
challenging the judgment and decree passed in
R.A.No.160/2002 dated 23.02.2006 passed by the III Addl.
Civil Judge (Sr.Dn) & CJM, Dharwad (for short, 'the First
Appellate Court') so far as partly decreeing the suit granting
half share to the defendant and rejecting his entire claim
over the suit property and challenging the judgment and
decree passed in O.S.No.63/1997 dated 31.07.2002 passed
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by the Civil Judge (Jr.Dn.) & JMFC, Kalghatagi (for short, 'the
Trial Court') thereby decreeing the suit in whole.
2. RSA Crob. No.100001/2015 in RSA No.2290/2006
is filed by the plaintiff challenging the judgment and decree
passed in R.A.No.160/2002 dated 23.02.2006 passed by the
III Addl. Civil Judge (Sr.Dn) & CJM, Dharwad thereby partly
allowing the appeal by granting half share to the
defendant/appellant.
3. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
4. The plaintiff has filed the suit for declaration that
she is the alone daughter of deceased-Channabasappa
Boodappa Nerti @ Nuggikeri (deceased-Channabasappa)
being the sole legal representative of deceased and hence
entitled to succeed to entire estate of the deceased-
Channabasappa, which was owned and possessed by
Channabasappa. The trial Court decreed the suit holding that
plaintiff is the only legal heir of deceased-Channabasappa
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being the daughter and is entitled to succeed to suit
property, which is owned and possessed by deceased-
Channabasappa.
5. The First Appellate Court on the appeal filed by
the defendant has partly reversed the judgment and decree
passed by the trial Court holding that the plaintiff is declared
as only daughter of Channabasappa but the relief of
declaration sought by the plaintiff to hold that she is the sole
legal representative entitled to succeed to entire estate of
deceased-Channabasappa, is not granted. Therefore, the
plaintiff has filed cross-objection in RSA No.2290/2006
stating that partly allowing the appeal is not correct since
execution of Will is not proved. The plaintiff is claming that
she is the only legal representative of deceased-
Channabasappa and entitled to succeed to the entire estate
of the deceased-Channabasappa and defendant is stranger
to the family of deceased-Channabasappa whereas the
defendant has contended that the deceased-Channabasappa
has executed Will in his favour of bequeathing entire suit
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property in his name. Therefore, he is entitled to succeed as
Will was executed in his favour by deceased-Channabasappa.
6. Upon rival contentions, this Court on 14.01.2011
while admitting the appeal has observed that since there is
divergent finding between the trial Court and the first
appellate Court regarding proof of Execution of Will,
therefore has framed the following substantial question of
law:
"Whether the judgment passed by the First
Appellate Court impugned herein is perverse and
illegal?"
7. The substantial question of law framed is general
in nature that whether the judgment and decree passed by
the first appellate Court is perverse and illegal. But after
hearing arguments by the learned counsels for both the
parties, it is observed the following substantial question of
law arises for consideration:
"Whether, under the facts and circumstances
involved in the case, just because the documents of
'Will' is more than thirty years old document, can
proof of the said Will as per Section 68 of the Indian
Evidence Act and Section 63 of the Indian
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Succession Act, be dispensed with and only by
raising a presumption as per Section 90 of the
Indian Evidence Act on the basis of presumption,
can the Will is said to be proved?"
8. The learned counsel for the appellant/defendant
submitted that the Will is executed on 03.06.1957 and its
original is produced as per Ex.D12 by the defendant during
the course of trial. Therefore, the presumption can be raised
in favour of execution and attestation of Will as per Section
90 of the Indian Evidence Act and presumed to be duly
executed and attested. Therefore, submitted that the
attesting witnesses of the Will died at the time of proving of
Execution of Will executed and Will is more than thirty years
old document and accordingly the first appellate Court has
rightly raised presumption in favour that the Will was
executed and hence justified the judgment and decree of the
first appellate Court except granting only half share to the
appellant/defendant. It is submitted that when the first
appellate Court has held that Execution of Will is duly
proved, then the first appellate Court ought to have decreed
the suit in its entirety granting the entire share in the suit
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property to the defendant. Therefore, he prays to allow the
appeal and declare the defendant is entitled to entire share
in the suit schedule property.
9. On the other hand, learned counsel for the
respondent/plaintiff and cross-objector submitted that Will
executed is created and concocted document and it is not
executed by deceased-Channabasappa. Though attesting
witnesses died but from the other circumstance, defendant
could have proved the Will, but has not produced evidence in
proving the Will by other circumstance. Therefore, submitted
that trial Court is correct that the Execution of Will is a
executed Will, is not proved, but the first appellate Court has
committed error that Will is executed. Further submitted that
in Ex.D12-Will, the recital is that since deceased-
Channabasappa was not having any other family members to
look after him therefore executed the Will. But the said Will
executed is 35 years before from the date of death of
deceased-Channabasappa and at that time, the deceased-
Channabasappa was 40 years old only, hence this is highly
suspicious circumstance that deceased had executed Will at
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his 40 years of age. Therefore, a high gap of 35 years
between the date of execution of alleged Will and date of
death of deceased-Channabasappa, who died on 14.05.1992,
it could not be presumed that 35 years before the death of
deceased, Will was executed. Therefore, this is one of the
highly suspicious circumstances on the Will. Therefore
submitted that the trial Court is correct in holding that the
execution of Will is not proved. Therefore, prays to allow the
cross-objection by setting aside the judgment and decree
passed by the first appellate Court so far as granting only
half share to the plaintiff in the suit schedule property.
10. When a Will is made to be tested before the Court
of law, then law mandates that atleast one of the attesting
witnesses shall be examined as the Will is a compulsorily
attestable document.
11. Section 63 of the Indian Succession Act (I.S. Act)
and Section 68 of the Indian Evidence Act (I.E. Act) provide
proof of Execution of Will. As per these provisions, atleast
one of the attesting witness shall be examined to prove
execution of Will. Just because Will is registered one that
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cannot dispense with proof of Execution of Will by examining
atleast one of attesting witness.
12. Section 90 of the I.E. Act stipulates raising of
presumption in respect of documents which are 30 years old
about its execution and attestation of document. Just
because the Will is 30 years old, proof of execution of Will as
per Section 63 of the I.S. Act and Section 68 of the I.E. Act
cannot be dispensed with. Though the document of Will is 30
years old, its proof of execution and attestation cannot be
presumed like any other documents which are more than 30
years.
13. Ex.D12 is the Will produced by the defendant
stated to have been executed by deceased-Channabasappa.
Ex.D12 Will is dated 03.06.1957. Ex.D.12 is thirty years old
document. The said Ex.D12-Will is a registered document.
There is no difference in regard to proof of Will whether it is
registered or not.
14. Section 90 of the Indian Evidence Act, 1872
stipulates as follows:
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"Section 90. Presumption as to documents
thirty years old:
Where any document, purporting or proved to be
thirty years old, is produced from any custody which
the Court in the particular case considers proper the
Court may presume that the signature and every
other part of such document, which purports to be
in the handwriting of any particular person, is in
that person's handwriting, and, in the case of
document executed or attested, that it was duly
executed and attested by the persons by whom it
purports to be executed and attested."
15. The first appellate Court has mainly considered on
the aspect that since Ex.D12 Will is thirty years old
document therefore, presumption can be raised as Will is
executed and duly attested. Therefore held that Execution of
Will is proved. This observation of First Appellate Court is not
correct.
16. The Hon'ble Supreme Court in the case of
Bharpur Singh and Others Vs.Shamsher Singh reported
in (2009) 3 SCC 687 has held at paragraphs 14, 15, 16,
17, 19, 20 and 23 as follows:
"14. The legal principles in regard to proof of a
will are no longer res integra. A will must be proved
having regard to the provisions contained in clause
(c) of Section 63 of the Succession Act, 1925 and
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Section 68 of the Evidence Act, 1872, in terms
whereof the propounder of a will must prove its
execution by examining one or more attesting
witnesses. Where, however, the validity of the will is
challenged on the ground of fraud, coercion or
undue influence, the burden of proof would be on
the caveator. In a case where the will is surrounded
by suspicious circumstances, it would not be treated
as the last testamentary disposition of the testator.
15. This Court in H. Venkatachala Iyengar v.
B.N. Thimmajamma [AIR 1959 SC 443] opined that
the fact that the propounder took interest in
execution of the will is one of the factors which
should be taken into consideration for determination
of due execution of the will. It was also held that:
(AIR p. 451, para 19)
one of the important features which
distinguishes a will from other documents is
that the will speaks from the date of death of
the testator, and so, when it is propounded or
produced before a court, the testator who has
already departed the world cannot say
whether it is his will or not; and this aspect
naturally introduces an element of solemnity
in the decision of the question as to whether
the document propounded is proved to be the
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last will and testament of the departed
testator.
16. In H. Venkatachala case [AIR 1959 SC 443] , it
was also held that the propounder of a will must
prove:
(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
propounder can be taken to be discharged on
proof of the essential facts indicated therein.
It was moreover held: (H. Venkatachala case [AIR
1959 SC 443] , AIR p. 452, para 20)
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"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 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
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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."
17. This Court in Niranjan Umeshchandra Joshi v.
Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14
Scale 186] held: (SCC pp. 447-48, paras 33-34)
"33. The burden of proof that the will has been
validly executed and is a genuine document is on
the propounder. The propounder is also required
to prove that the testator has signed the will and
that he had put his signature out of his own free
will having a sound disposition of mind and
understood the nature and effect thereof. If
sufficient evidence in this behalf is brought on
record, the onus of the propounder may be held
to have been discharged. But, the onus would be
on the applicant to remove the suspicion by
leading sufficient and cogent evidence if there
exists any. In the case of proof of will, a
signature of a testator alone would not prove the
execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a
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defence of fraud, coercion or undue influence is
raised, the burden would be on the caveator.
(See Madhukar D. Shende v. Tarabai Aba
Shedage [(2002) 2 SCC 85] and Sridevi v.
Jayaraja Shetty [(2005) 2 SCC 784] .) Subject to
above, proof of a will does not ordinarily differ
from that of proving any other document.
34. There are several circumstances which
would have been held to be described (sic) 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.
(See H. Venkatachala Iyengar v. B.N.
Thimmajamma [AIR 1959 SC 443] and T.K. Ghosh's
Academy v. T.C. Palit [(1974) 2 SCC 354 : AIR 1974
SC 1495] .)"
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19. The provisions of Section 90 of the
Evidence Act, 1872 keeping in view the nature of
proof required for proving a will have no application.
A will must be proved in terms of the provisions of
Section 63(c) of the Succession Act, 1925 and
Section 68 of the Evidence Act, 1872. In the event
the provisions thereof cannot be complied with, the
other provisions contained therein, namely, Sections
69 and 70 of the Evidence Act providing for
exceptions in relation thereto would be attracted.
Compliance with statutory requirements for proving
an ordinary document is not sufficient, as Section 68
of the Evidence Act postulates that execution must
be proved by at least one of the attesting witnesses,
if an attesting witness is alive and subject to the
process of the court and capable of giving evidence.
(See B. Venkatamuni v. C.J. Ayodhya Ram Singh
[(2006) 13 SCC 449] , SCC p. 458, para 19.)
20. This Court in Anil Kak v. Sharada Raje
[(2008) 7 SCC 695] 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 execution
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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."
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.
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(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 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."
17. The Hon'ble Supreme Court in the case of M.B.
RAMESH VS. K.M. VEERAJE URS AND OTHERS reported
in 2013 (7) SCC 490 has held that Section 90 of Indian
Evidence Act, 1872 is not applicable to proof of will, which is
held at para 17 as follows:
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"17. At the same time we cannot accept the
submission on behalf of the respondents as well
that merely because the will was more than 30
years old, a presumption under Section 90 of the
Evidence Act, 1872 ("the Evidence Act", for short)
ought to be drawn that the document has been duly
executed and attested by the persons by whom it
purports to have been executed and attested. As
held by this Court in Bharpur Singh V. Shamsher
Singh (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934,
a presumption regarding documents 30 years old
does not apply to a will. A will has to be proved in
terms of Section 63(c) of the Succession Act read
with Section 68 of the Evidence Act".
18. Therefore, Section 90 of the I.E. Act has no
application in proof of Will just because the document of Will
is 30 years old. The Will must be proved in accordance with
Section 63 of the I.S. Act and Section 68 of the I.E. Act. If
attesting witness died or are not available, then other
provisions stipulated in Section 69 and Section 70 of the I.E.
Act can be applied. In the present case, it is stated that two
attesting witnesses died. Therefore, remedy left open to the
propounder of the Will is to take aid of Section 69 of the I.E.
Act. In the present case as per the facts and circumstances,
Section 70 of the I.E. Act is not applicable. But the plaintiff
ought to have taken recourse to prove the Will as per
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Section 69 of the I.E. Act. Therefore, the plaintiff ought to
have proved that attestation of one of the attesting witness
atleast is in his handwriting by examining a person who
knows handwriting of the attesting witness and the signature
of the person executing the document is in the handwriting
of that person. This could have been done by the defendant
by examining the witness who knows the handwriting and
signature of the attesting witness and signature of the
testator. But the plaintiff has not taken recourse to prove the
Will even as per Section 69 of the I.E. Act also.
19. Section 69 of the Indian Evidence Act, 1872
stipulates as follows:
"Section 69. Proof where no attesting witness
found:
If no such attesting witness can be found, or if the
document purports to have been executed in the
United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his
handwriting, and that the signature of the person
executing the document is in the handwriting of that
person."
20. As stated above, Will is stated to have been
executed as per Ex.D12 dated 03.06.1957 and admittedly
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the deceased- Channabasappa died on 14.05.1992. From the
date of Execution of Will above stated, deceased-
Channabasappa died after 35 years from the date of
execution of alleged Ex.D12-Will.
21. As per Section 69 of the Indian Evidence Act,
where no attesting witness is found, then the proof of the
document considered in the present case, a question of
Execution of Will is involved and it is to be proved by
examining attesting witnesses and admittedly defendant has
not examined any attesting witnesses on the reason that the
attesting witnesses were not alive. Then as per Section 69 of
the Indian Evidence Act, it must be proved that the
attestation of at least one attesting witness who knows
handwriting and that signature of the person executing the
document is in the handwriting of the person but the
defendant has not applied Section 69 of the Indian Evidence
Act. Though as per the case of the defendant that attesting
witnesses were not alive, then, atleast the handwriting in the
document in case executor has written and for identification
of the handwriting, evidence should have been let in, but
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that is not done by the defendant. Also the defendant has
another option to prove the Will as per Section 69 of the
Evidence Act that the signature on the will is in the
handwriting of the Executor/testator also might have been
proved by entering evidence in this regard. But the
defendant simply kept quiet by saying that attesting
witnesses are not alive. Even if the attesting witnesses were
not alive, then, at the stage the right of defendant is not
extinguished. Further the defendant has option to prove
execution of Will as per Section 69 of the Indian Evidence
Act, but the defendant has not proved the Will as per Section
69 of the Indian Evidence Act.
22. Further, upon considering chronological events in
the case from the date of Execution of Will and till the date
of death of deceased-Channabasappa, deceased died on
14.05.1992 after 35 years from the date of Will. Upon
perusing Ex.D12, the reason shown by the testator in the
said Will is that since there are no body in the family to look
after him, at old age, therefore with all love and affection he
bequeathed the property in favour of the defendant. It is
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admitted fact that as on 03.06.1957 the date on which
Ex.D12 stated to have been executed, the deceased-
Channabasappa was hardly 45 years old. Therefore it is
highly suspicious that Ex.D12 was executed by deceased-
Channabasappa at the age of 45 years anticipating his death.
After the date 03.06.1957, the deceased-Channabasappa
was alive for 45 years, therefore the said execution of
Ex.D12-Will by deceased-Channabasappa is highly
impossible and suspicious one.
23. Therefore, Section 90 of the Indian Evidence Act
stipulates about the presumption as to the document thirty
years old. But this presumption is not conclusive proof to say
that just because Will is thirty years old, the execution of
document along with its attestation and signature are
proved. Presumption can be rebutted either by leading
evidence expressly or evidence revealed impliedly
surrounding the situation of Will.
24. This Court in the case of J.T. Surappa &
another Vs. Sri. Satchidhanandendra SSPCT & Ors.
reported in ILR 2008 KAR 2115 has laid down law
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regarding proof of will on considering five steps
"PANCHAPADI" which are crucial for considering validity or
otherwise of the will this Court has laid down law regarding
proof of will at para 24 as follows:
"Therefore, the court has to tread a careful path in
the enquiry to be conducted with regard to Will. The
said path consists 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?
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?"
25. In the present case, though there is no contra
evidence is led to the presumption raised, but upon
considering the evidence, it is proved that the Will is proved
to be suspicious one for the reason above stated and it is
highly improbable that the deceased-Channabasappa had
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executed the Will at his 45 years age before 35 years of his
death.
26. DW2 who is one of the witness, had stated that
deceased is his uncle and plaintiff is his cousin sister.
Therefore, deceased was having family. Deceased-
Channabasappa could have stated that he is excluding his
wife and daughter and bequeathed the property entirely in
favour of the defendant but there is no whisper in Ex.D12
that deceased- Channabasappa was having wife and
daughter and why they are excluded in the Will. This is also
one of the improbable situation, creating doubtness on
Ex.D12 document.
27. From the evidence on record viz., from the
evidence of PWs.2 and 3, it is proved that the plaintiff is the
daughter of deceased-Channabasappa. DW2 who has given
evidence has admitted in the cross-examination that plaintiff
is daughter of deceased-Channabasappa. Therefore both the
trial Court and the first appellate Court are correct in this
regard holding that plaintiff is the only legal heir of
deceased-Channabasappa being daughter and this fact
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arrived at by both the trial Court and the first appellate Court
are confirmed. Therefore, for the reason above discussed,
the substantial question of law framed on 14.01.2011, is
answered in the negative. The substantial question of law
framed today, above stated, is answered in the negative by
holding that just because the Will is thirty years old
document, cannot dispense with the proof of Will as per
Sections 68 and 69 of the Indian Evidence Act and Section
63 of the Indian Succession Act. Accordingly, both the
substantial questions of law are answered. Hence, I pass the
following:
ORDER
i) RSA No.2290/2006 is hereby dismissed.
ii) RSA Crob.No.100001/2015 in RSA
No.2290/2006 filed by the plaintiff is hereby
allowed.
iii) The judgment and decree passed in
R.A.No.160/2002 dated 23.02.2006 passed
by the III Addl. Civil Judge (Sr.Dn) & CJM,
Dharwad sofar as the plaintiff is not entitled
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to entire estate of the deceased-
Channabasappa, is set aside. The judgment
and decree passed in O.S.No.63/1997 dated
31.07.2002 passed by the Civil Judge
(Jr.Dn.) & JMFC, Kalghatagi is hereby
confirmed.
iv) No order as to costs.
Sd/-
JUDGE
KGK
