Karnataka High Court
Sri V Kempanna S/O Sri Venkataramanappa vs Sri D Venkataramanappa on 25 October, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.40/2009 (DEC/INJ)
BETWEEN:
SRI V. KEMPANNA
S/O SRI VENKATARAMANAPPA
AGED ABOUT 60 YEARS
R/O MARASANDRA VILLAGE
JALA VILLAGE
BANGALORE NORTH TALUK
BANGALORE DISTRICT-560049
... APPELLANT
[BY SRI K.ABHINAV ANAND, ADVOCATE]
AND:
1. SRI D. VENKATARAMANAPPA
SINCE DECEASED REPTD. BY HIS LRS.
1(a) SMT. GOWRAMMA
W/O LATE SRI. D. VENKATARAMANAPPA
SINCE DECEASED
RESPONDENT NO.1(b) TO R1(g),
R2 AND APPELLANT ALREADY ON RECORD
TREATED AS HER LRS THROUGH THE
ORDER DATED 02.08.2024.
1(b) SMT. GANGAMMA
D/O LATE SRI. D.VENKATARAMANAPPA
AGED ABOUT 52 YEARS
2
1(c) SRI VENKATESH
S/O LATE SRI. VENKATARAMANAPPA
SINCE DECEASED BY HIS LRS
R1(c)(i) SMT.JAYAMMA
W/O LATE SRI VENKATESH
AGED ABOUT 45 YEARS
R1(c)(ii) KUM. NAYANA
D/O LATE SRI VENKATESH
AGED ABOUT 24 YEARS
R1(c)(iii) KUM. SAHANA
D/O LATE SRI. VENKATESH
AGED ABOUT 22 YEARS
ALL ARE RESIDENTS OF
MARASANDRA VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK
BANGALORE DISTRICT-560 049.
1(d) SRI MUNIRAJU
S/O LATE SRI. D. VENKATARAMANAPPA
AGED ABOUT 44 YEARS
1(e) SMT. MUNIYAMMA
D/O LATE SRI. D. VENKATARAMANAPPA
AGED ABOUT 42 YEARS
LRS 1(a) TO 1(e) ARE RESIDENTS OF
MARASANDRA VILLAGE, MANDURU POST
BANGALORE - 560 049.
1(f) SMT. NANDAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 40 YEARS
R/O BYALAHALLI VILLAGE
3
ANUGONDANAHALLI HOBLI
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(g) SMT.SAVITHRAMMA
D/O LATE SRI D.VENKATARAMANAPPA
AGED ABOUT 38 YEARS
1(h) SMT. MUNIRATHNAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 42 YEARS
1(i) SRI NAGARAJU
S/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 40 YEARS
LRS 1(G) TO 1(I) ARE RESIDENTS OF
MARASANDRA VILLAGE
MANDURU POST
BANGALORE - 560 049
1(j) SMT. BHAGYAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 36 YEARS
R/O PETTANAHALLI VILLAGE
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(k) SMT. SARITHA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 32 YEARS
R/O JADIGENAHALLI VILLAGE AND HOBLI
HOSKOTE TALUK
BANGALORE RURAL DISTRICT.
1(l) SMT. VIJIYAMMA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 30 YEARS
4
JANGAMAKOTE HOBLI
SHIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT.
1(m) SRI RAVICHANDRA
D/O LATE SRI D. VENKATARAMANAPPA
AGED ABOUT 28 YEARS
R/O MARASANDRA VILLAGE
MANDURU POST
BANGALORE-560049.
[VIDE ORDER DATED 04.01.2024 RESPONDENTS 5 TO
7 SHOWN AS RESPONDENTS 1(d), (i) & (m)]
2. SRI MUNIYAPPA
S/O SRI VENKATARAMANAPPA
AGED ABOUT 37 YEARS
3. SRI GANESHA
ILLEGITIMATE S/O SRI VENKATARAMANAPPA
AGED ABOUT 31 YEARS
4. SRI SHANKARAPA
(DIED AS BACHELOR DURING THE PENDENCY
OF THE APPEAL AND APPEAL ABATED AGAINST HIM
V/O DATED 29.02.2016 & 25.10.2023)
ALL ARE RESIDENTS OF MARASANDRA VILLAGE
JALA HOBLI, BANGALORE NORTH TALUK
BANGALORE DISTRICT.
... RESPONDENTS
[BY SRI N SHANKARA NARAYANA BHAT, ADVOCATE FOR
C/R3 AND R1(a to f) AND R2 AND R1(c)(i to iii); R1(g),
R1(h), R1(i to m) ARE SERVED;
VIDE ORDER DATED 23.11.2011,
APPEAL ABATED AS AGAINST DECEASED R4;
VIDE ORDER DATED 29.02.2016,
5
APPEAL AGAINST R4 HAS ABATED;
SRI ABHINAV R., ADVOCATE FOR R5 TO R7;
VIDE ORDER DATED 02.08.2024, R1(b to g);
R2 AND APPEALLANT ARE LRS OF R1(a)]
THIS R.F.A. IS FILED UNDER SECTION 96 R/W O XLI OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 20.9.2008
PASSED IN OS.NO.472/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND JMFC, DEVANAHALLI, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION AND ETC.
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.10.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
This Regular First Appeal is filed challenging the judgment
and decree dated 20.09.2008 at Annexure-A and A1 passed in
O.S.No.472/2006 by the Civil Judge (Sr. Dn.) and JMFC,
Devanahalli.
2. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the respective
respondents.
3. The factual matrix of the case of the
plaintiff/appellant before the Trial Court that he is the
propounder of registered last Will and testament dated
27.03.1993 which is marked as Ex.P8 executed by his paternal
grandfather Doddahanumappa. The executant passed away on
14.02.1994. Based on the said Will, mutation and RTC came to
be transferred by the revenue authorities into the name of the
propounder in the year 1995-96. When the respondents
confronted with the right and title of the appellant over the suit
schedule property in the year 2004, he was forced to file a suit
in O.S.No.85/2004 against the respondents before the Principal
Civil Judge (Sr. Dn.), Bangalore Rural District, Bangalore for the
relief of declaration and perpetual injunction in respect of suit
schedule property. It is his case that the suit schedule property
was the self acquired property of the testator for having acquired
through grant by the State Government on 04.07.1960 by
issuance of Saguvali Chit at Ex.P2. The original grantee that is
executant was in possession of the property and entire revenue
records are standing in his name. The testator at his old age
was deserted by his sons i.e., respondent No.1 and his elder
brother Munikempaiah and the appellant was looked after by him
working in a private concern till his death. The appellant is the
eldest son of respondent No.1 and eldest grandson of the
testator and Will was executed out of love and affection as he
has taken care of the testator. It is contended that when the
eldest son of the testator namely Munikempaiah and his three
sons had questioned him about his right and title over the suit
schedule property on the basis of Ex.P8, a similar suit in
O.S.No.727/1995 was filed by the appellant earlier and the same
came to be decreed through the judgment and decree dated
11.09.1997 in terms of Ex.P23 and P24 and it has reached its
finality. It is also contention of the appellant that respondent
No.1 is his father and respondent No.2 is his younger brother.
Respondent Nos.3 and 4 are his step-brothers.
4. The respondents, on service of notice and summons,
appeared through their counsel and filed their written statement
denying the plaint averments. They disputed the authenticity
and genuineness of the registered Will but they did not set up
any specific defence or counter claim.
5. It is the contention of the appellant before this Court
that the Trial Court taking into note of the pleadings and written
statement, framed six Issues and allowed the parties to examine
the witnesses and documents were also marked on both sides
but without considering the material available on record in a
proper perspective, dismissed the suit. Hence, the present
appeal is filed before this Court.
6. The main contention of the learned counsel
appearing for the appellant in this appeal is that there is no
dispute with regard to the relationship between the parties. It is
also not in dispute that the suit schedule property was allotted in
favour of the testator by the Government. It is the contention of
the appellant that respondent Nos.3 and 4 are his step-brothers
being the sons of respondent No.1 through Nanjamma. The
legally wedded wife of respondent No.1 is Gowramma that is the
mother of the appellant and she is still alive. It is further
contended that inspite of cogent evidence is placed before the
Trial Court, the Trial Court committed an error in coming to the
conclusion that Ex.P8-Will has not been proved and the same is
surrounded with suspicious circumstances. The testator has
bequeathed the suit schedule property in favour of the appellant
out of love and affection being his eldest grandson through
respondent No.1 who looked after him at his old age. It is also
contended that Ex.P8 is not against the provisions of Sections 67
and 68 of the Indian Evidence Act, 1872 and Sections 59 and 63
of the Indian Succession Act, 1925. The respondents have not
disputed the left hand thumb impression of the testator at Ex.P8
so as to take recourse to Sections 45 and 47 of the Indian
Evidence Act, 1872. The evidence adduced by the appellant
does not create any suspicious circumstances regarding the
execution of Ex.P8 by the testator. The respondents through
their evidence have not made out that Ex.P8 came into existence
under undue influence or fraud or threat or coercion.
7. It is also the contention that PW2 is the widow of one
of the attesting witnesses who has identified her husband's
signature in Ex.P8. PW3 is the advocate who prepared Ex.P8 on
the instructions of the testator and has identified the left hand
thumb impressions of the testator in Ex.P8. Ex.P8 has not been
challenged by any of the children or grandchildren of the
testator. No one has claimed any share or partition in the suit
schedule property till now. Through Ex.P23 and P24 (judgment
and decree of the earlier suit), the Trial Court has declared that
Ex.P8 is proved and the same become final and conclusive. But
Trial Court in the present suit has erred in coming to the
conclusion that Ex.P8 is not proved. The suit was filed against
only the persons who troubled the appellant and the appellant
has not chosen to make the other children and grandchildren of
the testator as parties to the suit as they have not troubled the
appellant. It is further contended that the Trial Court committed
an error in holding that the other children and grandchildren of
the testator are not made as parties to the suit. The Trial Court
has unnecessarily ventured to decide the marital status of
Nanjamma and there was no dispute that defendant No.1 was
having two wives. PW2 is the wife of one of the attesting
witnesses Krishnappa. The very approach of the Trial Court is
erroneous in coming to the conclusion that Will has not been
proved.
8. The learned counsel also in his arguments would
vehemently contend that apart from execution of the Will at
Ex.P8, even an affidavit was also executed by the executant
which was marked as Ex.P9. The suit was filed against his father
and other brother and step-brothers and when the suit was filed
for the relief of declaration and not for partition, no need to
make the other sons of executant and grandchildren as parties
to the suit. The decision regarding marital status of mother and
step-mother was not required in a case where the relief of
declaration is claimed. The very approach of the Trial Court that
Ex.P8 is suspicious is not correct when the same was already
decided. The counsel also submits that other suits were filed in
the year 2015, 2018 and 2023 and the same were pending for
adjudication before the Trial Court and hence, this matter also
may be remanded to the Trial Court to consider along with other
suits. Thus, the Trial Court committed an error in dismissing the
suit and the same requires interference.
9. Per contra, the learned counsel appearing for
respondent Nos.1 to 4 would vehemently contend that in the
earlier suit, the attesting witnesses have not been examined and
the Trial Court has also observed the same. The Trial Court also
appreciating both oral and documentary evidence placed on
record and comes to the conclusion that Will is surrounded with
suspicious circumstances. The counsel also would vehemently
contend that the Trial Court in detail discussed with regard to
the fact that the suit schedule property was a granted land and
also discussed with regard to the relationship between the
parties and comes to the conclusion that there is no dispute with
regard to the relationship between the parties. The Trial Court
also taken note of each and every material available on record
meticulously and comes to the conclusion that Will has not been
proved and the same is surrounded with suspicious
circumstances and hence, it does not requires any interference.
10. The counsel in support of his arguments relied upon
the judgment of the Apex Court in the case of K LAXMANAN vs
THEKKAYIL PADMINI AND OTHERS reported in (2009) 1
SCC 354 and brought to notice of this Court the discussions
made in the judgment with regard to the onus to prove and
manner of proving the Will and burden lies on the propounder
and held that the propounder should prove the legality of
execution and genuineness of the will by explaining the
suspicious circumstances, if any, surrounding the will and also by
proving the testamentary capacity and the signature of testator.
Even where plea of suspicious circumstances is not raised but
circumstances give rise to doubt, the propounder must satisfy
the conscience of the Court by removing such doubt. The
counsel referring this judgment would contend that suspicious
has not been removed by the propounder and hence, the Trial
Court rightly dismissed the suit. The counsel also would
vehemently contend that the contention of the plaintiff/appellant
that he has taken care of the testator and in order to prove the
said fact, nothing is placed on record by the appellant.
11. The counsel also relied upon the judgment of the
Apex Court in the case of YUMNAM ONGBI TAMPHA IBEMA
DEVI vs YUMNAM JOYKUMAR SINGH AND OTHERS reported
in (2009)4 SCC 780 and contended that in this judgment also
the Apex Court discussed the scope of Section 63 of the
Succession Act, 1925 with regard to the requirements of a valid
will, mode of proving a will and attestation of a will wherein the
Apex Court held it is not a mere formality to be valid, a will
should be attested by two or more witnesses and propounder
should examine one attesting witness to prove the will. Attesting
witness should speak not only about testator's signature or
affixing his mark to the will but also that each of the witnesses
had signed the will in presence of testator. The counsel also
brought to notice of this Court paragraph 11 of the said
judgment wherein discussion was made with regard to the
provisions of Section 63 of the Succession Act, for the due
execution of a will and so also the counsel brought to notice of
this Court the discussion made in detail by the Apex Court
regarding proving of a will. The counsel relying upon this
judgment would vehemently contend that Ex.P8 has not been
proved and the Trial Court has rightly dismissed the suit.
12. The learned counsel appearing for respondent Nos.5
to 7 would vehemently contend that the testator is the resident
of Marasandra village but his address in the Will is shown as
Bengaluru and no document is placed before the Court to show
that the testator was resident at Bengaluru. The counsel would
vehemently contend that none of the attesting witnesses have
been examined before the Trial Court and though examined
PW2, she is not the attesting witness but she is the wife of one
of the attesting witness. It is also contended that PW3 is the
advocate and scribe of Ex.P8 and he deposed that testator came
on the same day but the document reveals that the stamp paper
is nine months old. The counsel also would vehemently contend
that stamp paper used for preparing the Will is of nine months
old and the Trial Court in detail discussed with regard to the
using of stamp paper. The counsel also would vehemently
contend that one grandson disinheriting the other sons and
grandchildren of the testator, no recital in the Will with regard to
making a Will in favour of the beneficiary. The LTM also not
proved independently by examining the attesting witnesses. The
counsel also would vehemently contend that no compliance of
Sections 68 of the Evidence Act and 63 of the Succession Act
and not examined other attesting witness except the wife of one
of the attesting witnesses - Krishnappa. It is also contended
that the plaintiff residing along with his wife at Elagunte village
and distance from Elagunte to Marasandra is 15 k.m., and the
testator was residing at Marasandra. Hence, it is clear that the
propounder was not residing along with the testator. The counsel
also would vehemently contend that one of the attesting
witnesses is the plaintiff's wife's elder brother. All these factors
are taken note of by the Trial Court while dismissing the suit.
13. In reply to the arguments, the learned counsel
appearing for the appellant would vehemently contend that no
bar to take the signature of the relatives and also the counsel
would vehemently contend that Will need not be in any manner
and even registration also not required and the finding of the
Trial Court is against the material available on record. Hence, it
requires interference.
14. Having heard the learned counsel appearing for the
respective parties and also considering the material available on
record and also considering the principles laid down in the
judgments referred supra, the points that would arise for the
consideration of this Court are:
1. Whether the Trial Court committed an error in
coming to the conclusion that Ex.P8-Will came
into existence under suspicious circumstances?
2. Whether the Trial Court committed an error in
appreciating both oral and documentary
evidence placed on record and whether it
requires interference of this Court by exercising
the appellate jurisdiction?
3. What order?
15. Having heard the learned counsel appearing for the
respective parties as well as considering the pleading and
material available on record, it discloses that it is not in dispute
that the suit was filed for the relief of declaration declaring that
the plaintiff is the lawful owner and in peaceful possession and
enjoyment of the suit schedule property and for the
consequential relief of permanent injunction restraining the
respondents from interfering with his peaceful possession and
enjoyment of the suit schedule property.
16. It is not in dispute that the suit schedule property
situated at Sy.No.54 of Marasandra village measuring 7 acres 1
gunta. It is also not in dispute that the said property was a self-
acquired property of Dodda Hanumappa. The Dodda
Hanumappa got the suit schedule property by the Government
through Saguvali Chit dated 04.07.1960 at Ex.P2. It is the
contention of the defendants that the suit schedule property was
granted in favour of Dodda Hanumappa and the same is his self-
acquired property and also admitted the relationship between
the parties but totally denied the execution of the Will dated
27.03.1993.
17. The Trial Court after considering the pleadings of the
parties, framed the following Issues:
1. Whether the plaintiff proves that Dodda
Hanumappa has bequeathed the suit schedule
property in his favour through the registered
Will dated 27.03.1993?
2. Whether the plaintiff proves his lawful possession
of the suit schedule property on the date of
filing the suit?
3. Whether the plaintiff proves the alleged
interference by the defendants?
4. Whether the plaintiff proves his title to the suit
schedule property?
5. Whether the plaintiff is entitled for permanent
injunction, as prayed for?
6. To what order or decree?
18. It is also important to note that the crux of the issue
before this Court that on re-appreciation of both oral and
documentary evidence placed on record, this Court has to
examine whether the Will was valid or whether the same is
surrounded with suspicious circumstances. It is also not in
dispute that the plaintiff himself examined as PW1 and also it is
emerged during the course of the evidence that he was also
present at the time of execution of the Will as admitted by him
in his evidence. It is also important to note that the principles
laid down in the judgments referred supra by the counsel for
respondent Nos.1 to 4 is also settled position of law that one of
the attesting witnesses must be examined before the Trial Court
in order to prove the Will and also attesting witnesses should
speak not only about the testator's signature or affixing his mark
to the Will but also that the each of the witnesses had signed the
Will in the presence of testator. It is also settled law that if
there is any suspicious circumstances, the propounder of the Will
should remove the same.
19. In keeping the principles laid down in the judgments
as well as it is settled law that the Court has to re-examine the
factual aspect as well as question of law as the present appeal is
a regular first appeal and the same is a statutory appeal. No
doubt, the Trial Court in detail discussed with regard to the
nature of the land and no dispute that the suit schedule property
was the self-acquired property of the executant. It is also not in
dispute that earlier also the plaintiff/appellant had filed suit and
the same was decreed in terms of Ex.P23 and P24. The fact in
this case is that the attesting witnesses were not examined in
the said suit is also not in dispute. Hence, with regard to the
proving of Will is concerned, Ex.P23 and P24 will not come to the
aid of the plaintiff/appellant.
20. Now this Court has to examine whether there is
compliance of Section 63 and 68 of the respective Acts in
proving the Will. I have already pointed out that PW1
categorically admitted that he was very much present while
executing the Will. It is also not in dispute that the land was
granted in the year 1960 in favour of Dodda Hanumappa and he
was having sons namely, Munikempaiah and also father of the
appellant that is Venkataramanappa. It is also not in dispute that
the said DW1 who is the father of the appellant had two wives
and defendant Nos.3 and 4 are step-brothers of the appellant
through Nanjamma and though same is disputed but not
seriously disputed before the Court. It has to be noted that
according to the plaintiff, Will was executed and the same was
registered. It is important to note that one of the attesting
witnesses who passed away and his wife was examined as PW2
and she came and identified her husband's signature but not
produced any document of her husband before the Trial Court to
show that her husband used to sign similarly and also plaintiff
has not taken any steps to examine any of the attesting
witnesses in proving the Will before the Trial Court. The plaintiff
ought to have examined other attesting witness who is alive and
he would be competent witness to come and speak with regard
to the very execution of the Will, but the same has not been
done.
21. It is also important to note that PW2 cannot speak
with regard to the fact that testator and her husband had signed
the document in the presence of testator. The material witness
would be the other attesting witness and instead of relying upon
the evidence of PW2, the plaintiff ought to have been examined
other attesting witness, then there would be a compliance of
Section 63 and 68 of the respective Acts and statutory
requirements for due execution of Will ought to have been
proved, but, same has not been done in compliance of Section
68 of the Indian Evidence Act by examining at lease one of the
attesting witness and also attestation itself has to be proved in
the form of Section 63(c) of the Succession Act which requires.
The Trial Court also taken note of the said fact into consideration
in paragraph 56 of its judgment and also discussed with regard
to the evidence of PW2 in paragraph 55 and it has rightly comes
to the conclusion that the evidence of PW2 is only a hearsay
evidence and the same does not prove the execution of the Will.
No doubt, examination of PW2 is in compliance of Section 69 of
the Evidence Act but when the other attesting witness is alive,
ought to have been examined to comply the same, but, same
has not been done.
22. It is also important to note that the Trial Court also
taken note of the date of the stamp paper which was used for
preparing the Will at Ex.P8 and also the evidence of PW3 i.e., the
scribe who is also an advocate and he deposes before the Court
that testator had approached him on 27.03.1993 but the stamp
paper reveals that the treasury seal is dated 19.06.1992,
whereas the said stamp paper sold as per the seal mentioned by
the stamp vendor on 27.03.1993. Hence, the date of release of
stamp paper and the date of using of stamp paper is more than
six months from the date of execution of the Will. The Trial
Court also taken note of the fact that at Ex.P8, in pages 1 and 3,
it is mentioned that it was issued in the name of Dodda
Hanumappa by the stamp vendor but in the page 2, it is
mentioned that the same was issued in the name of Syed
Ahamed, hence, there is a doubt with regard to genuineness of
the execution of the alleged Will by the deceased testator in
favour of the plaintiff. The Trial Court also taken note of the fact
that Sub-Registrar, on the back side of the document, mentioned
the date of 26.06.1993 but it is not the case of the plaintiff that
on 26.06.1993, he was present before the Sub-Registrar for
registration of the Will.
23. It has to be noted that PW3 who prepared the Will
speaks that the testator approached him on particular date i.e.,
on the date of registration of the Will and not earlier to the said
date. All these factors are also taken note of by the Trial Court in
paragraph 57 of its judgment. In paragraph 58, the Trial Court
considered the evidence of PW3 wherein he categorically says
that on 27.03.1993 at 10.30 a.m., when he was in the Bar
Association, Bangalore, the executant approached him through
one Krishnappa. His evidence is also clear that deceased testator
affixed his LTM and also directed the attesting witnesses to put
their signature. But his chief-examination itself contradicts the
ingredients as mentioned in Section 63 of the Succession Act and
he has not whispered whether the plaintiff was present at the
time of registration of the Will or not since PW1 categorically
admitted that he was accompanied with the deceased testator at
the time of execution of Ex.P8. PW3 also says that on the
instructions and direction of the executant, he prepared Ex.P9-
Affidavit on 05.04.1993. Hence, the Trial Court rightly comes to
the conclusion that when the registered Will was executed, there
was no need of any affidavit subsequent to the date of the
execution of the Will and the same is also observed in paragraph
59 of the judgment of the Trial Court.
24. The Trial Court in detail discussed the material
available on record and considered both oral and documentary
evidence placed on record and also taken note of the evidence of
witnesses particularly, PW1 to PW3 and so also the contention of
the defendants. The Trial Court particularly considering the
document at Ex.P8 under which the plaintiff claims the right
taken note of the fact that the said document came into
existence in a suspicious circumstances and also it has to be
noted that the executant having two sons and also the
grandsons and why he has executed the Will only in favour of
one of the grandson, no reasons are assigned in disinheriting the
sons and grandsons of the executant and hence, there is a force
in the contention of the respondent counsel also that no reasons
are assigned while executing the Will only in favour of the
appellant. It is also settled law that while dispossessing the
property, the reason has to be given stating that for what special
reason, he was bequeathing the property only in favour of one of
the grandson excluding the other legal heirs and also
grandchildren. No such recital is found in Ex.P8. This Court
already taken note of the fact that Ex.P9 came into existence in
a suspicious circumstances and when the document at Ex.P8 was
registered, there is no need of execution of Ex.P9 and there is no
any warranting circumstances to execute the same when the
attesting witnesses have also not spoken about the same and
this Court already pointed out that other attesting witness has
not been examined before the Court and only relies upon the
evidence of PW2 who is not the attesting witness and not
present at the time of execution of the document.
25. It is also important to note that the beneficiary has
played his role in getting the document and categorically admits
that he was very much present at the time of execution of the
document i.e., Will and the same is other suspicious
circumstances. The Trial Court also taken note of the fact that
the document which have been placed before the Trial Court
particularly, stamp paper which has been used for execution of
the Will is also found discrepancies like, the document was
purchased in the year 1992 itself and made use of the same in
the year 1993 and detail discussion was made by the Trial Court
in this regard and the Trial Court also meticulously examined the
material available on record. Hence, I do not find any force in
the contention of the appellant that the Trial Court has
committed an error in dismissing the suit.
26. The counsel for the appellant would contend that
other three suits have been filed in the year 2015, 2018 and
2023 and this matter may be remanded to the Trial Court to
consider along with the other suits, but the question of remand
of this matter does not arise when the suit is filed for the relief
of declaration and permanent injunction that too claiming the
right based on Ex.P8 which is executed under suspicious
circumstances and though examined two witnesses, their
evidence is not sufficient and Ex.P8 came under suspicious
circumstances excluding other family members and suspicious
circumstances has not been removed by the propounder of the
Will. Thus, no error committed by the Trial Court in appreciating
both oral and documentary evidence placed on record and
hence, I answer point Nos.1 and 2 as 'negative'.
Point No.3:
27. In view of the discussions made above, I pass the
following:
ORDER
The Regular First Appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN
