Karnataka High Court
Smt. Vedavathi vs Smt. Kamakka on 1 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.1878/2008 (DEC)
BETWEEN:
1. SMT. VEDAVATHI
AGED ABOUT 38 YEARS
W/O RAJANNA
D/O ESHWARAPPA
KUNTEGOWDANAHALLI
KALLAMBELLA HOBLI
SIRA TALUK,
TUMKUR DISTRICT-572 137.
2. SRI MANJUNATH
AGED ABOUT 32 YEARS,
S/O ESHWARAPPA,
KUNTEGOWDANAHALLI,
KALLAMBELLA HOBLI
SIRA TALUK,
TUMKUR DISTRICT-572 137. ... APPELLANTS
(BY SRI L. RAJANNA, ADVOCATE)
AND:
SMT. KAMAKKA
W/O HONNAPPA
SINCE DECEASED BY LRS
1. SRI. NAGARAJ
AGED ABOUT 38 YEARS,
2
S/O JAVARAPPA
KUNTEGOWDANAHALLI VILLAGE
KALLAMBELLA HOBLI,
SIRA TALUK,
TUMKUR DISTRICT.
2. SMT. KAMALAMMA
D/O RANGAPPA
SINCE DECEASED BY HER LRS
2(a) SRI RANGANATHAPPA
S/O LATE R. RANGAIAH
AGED ABOUT 59 YEARS
2(b) SARIKA
D/O RANGANATHAPPA
AGED ABOUT 19 YEARS
BOTH ARE RESIDING AT NO.138/3,
MANJUNATHA RESIDENCY
HANUMAIAH ROAD,
(09), BESCOM OFFICE,
TATANAGAR, BENGALURU,
KARNATAKA-560092.
(AMENDED VIDE COURT ORDER DATED 10.02.2023)
3. SMT. SIDDAMAM
@ SANNASIDDAMMA
SINCE DECEASED BY HER LRS.
3(a) SRI. M.J. KAMAIAH
AGED ABOUT 66 YEARS
MATANHALLI,
KUNTEGOWDANAHALLI
KALLAMBELLA HOBLI,
SIRA TALUK,
TUMKUR DISTRICT-572 137.
3
4. SRI. R. MALLEGOWDA
AGED ABOUT 71 YEARS
S/O LATE R.RANGASHAMAIAH
R/AT SANTHEPETE, SIRA TOWN,
TUMKUR DISTRICT-572 137. ... RESPONDENTS
(BY SRI LOKESH K.S., ADVOCATE FOR C/R1;
SRI A. SAMPATH &
SRI N.K.MALLIKARJUN, ADVOCATES FOR R2(a & b);
VIDE ORDER DATED 17.06.2009,
NOTICE TO R3(a) AND R4 IS DISPENSED WITH)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 22.07.2008
PASSED IN R.A.NO.305/2007 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-V, TUMKUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE ATED
18.08.2007 PASSED IN O.S.NO.126/2005 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.) SIRA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
1. Heard learned counsel appearing for the appellants
and learned counsel appearing for caveator-respondent No.1 and
learned counsel for respondent No.2(a) and (b). This Court
earlier heard the matter and answered only substantial question
of law No.(ii) and directed to pay Commissioner fee, since an
application is filed under Order 26 Rule 9 and 10A CPC was
allowed by answering second substantial question of law and an
observation was made that other substantial questions of law
will be considered after getting report from the Commissioner.
Now, the report of the Commissioner is received and placed on
record and therefore, the matter is heard afresh.
2. For the sake of convenience, the parties are referred
to as per their original ranking before the Trial Court.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of declaration to declare
that she is the owner of the schedule properties and sought for
possession of the suit schedule properties and grant such other
relief's, it is contended that she is the only daughter of her
parents namely Doddakamaiah and Puttamma of
Kunteggowdanahally Village in Sira Taluk and they had no male
issues. It is contended that the plaintiff was given in marriage to
one Honnappa of the same Village about 35-40 years back. The
marriage was performed by her father at Kuntegowdanahlli
Village. The plaintiff's mother died about 20 years back. Since
then, the father of the plaintiff used to lead life alone. By that
time one Siddamma, wife of Jogappa of the same village and a
close contact with him and she used to reside with him by
deserting her husband. Later on the defendant who is the
daughter of one Siddalingappa, the brother of Doddasiddamma
used to come and take shelter with the father of the plaintiff by
asserting that her husband by name M.J.Kamaiah of
Motaganhalli Village deserted her. With that she began to
influence the father of the plaintiff and started to mislead him,
taking undue advantage of his smoothness. It is contended that
after the death of her mother, the plaintiff used to give frequent
visit to her mother's place Balenahalli as her mother had some
landed properties and she also used to look after her father i.e.,
all necessities, till his death. It is also the contention that she
used to assist in his agricultural work and she used to stay most
of her day's in her father's house.
4. It is contended that the father died on 02.09.1988
and all the death ceremonies were preformed by the plaintiff.
After the death of her father Kamaiah, the plaintiff used to look
after all the suit properties which are all the ancestral properties
of Kamaiah. It is further contended that her father Kamaiah used
to look after his daughter plaintiff with most love and affection
and he has never parted with his properties in favour of anybody
that too ignoring the welfare of the plaintiff and has not given
any properties in favour of anybody nor he had allowed anybody
to enjoy the same including the defendant. The plaintiff being
the legal heir to her father Kamaiah succeeded to the entire suit
schedule property as Class I heir and she was in possession and
enjoyment of the suit schedule properties. Such being the case,
somewhere in the year 1992, the defendant had come and
interfered saying that she is entitled for the properties of
Kamaiah's the Khatha and pahani has been made out in her
favour by the revenue authorities. Thus, there was an occasion
for the plaintiff to verify the revenue records and learnt that
Khatha and pahani was ordered to be made out in her favour by
the revenue authorities and immediately she has obtained copies
of the same and filed R.R.T. appeal in No.159/93-94 and the
same is pending.
5. It is contended that taking undue advantage of the
R.T.C. entries with the active support of her well wishers one
Eswarappa of Bukkapatna and others have forcibly dispossessed
the plaintiff from the suit property about 2 years back. The
plaintiff had convened a panchayath in the village, but all
became vain. Thus, the possession of the defendant, if any, is
nothing but illegal and unauthorized and she is the plaintiff who
become the exclusive owner of all the suit schedule properties
who succeeds to the entire suit schedule property as a Class I
heir of deceased Kamaiah.
6. The defendant appeared and filed the written
statement contending that the allegation made in para 2 of the
plaint that plaintiff is the daughter of Dodda Kamaiah and
Puttamma is false. The allegation that plaintiff's marriage was
performed by Kamaiah, is also false. The allegation that
plaintiff's mother died 20 years back and since then her alleged
father lived alone are false. The further allegations that one
Siddamma wife of Jogappa came in contact with Kamaiah and
used to reside with him deserting her husband is also false. The
defendant denied the entire allegation made in the plaint
including performing of last rituals of the said Kamaiah by the
plaintiff. The allegation that the plaintiff made frequent visit to
Balenahalli and used to look after her father viz., Kamaiah till his
death and after his death, plaintiff used to look after all the suit
properties is denied. The defendant in his written statement
specifically contended that the properties belonged to Kamaiah.
The said Kamaiah fostered the defendant from her childhood as
his daughter since he had neither wife nor children. The
defendant is a close relative of the said Kamaiah i.e., the
maternal grand mother of defendant was the sister of the
mother of the said Kamiah. The defendant look after all the
agricultural work on the suit schedule properties and the welfare
of the said Kamaiah, so, the said Kamaiah had all the natural
love and affection over the defendant and wished that the suit
schedule properties shall go to the defendant after his death. It
is his contention that the said Kamaiah son of Badappa
celebrated the marriage of the defendant with one M.J.Kamaiah
who is now retired teacher. Both the defendant and her husband
looked after the welfare of the said Kamaiah and hence, when he
was in sound state of mind executed a registered Will dated
01.01.1975 bequeathing the suit schedule properties belonging
to him to the defendant. The Will came into existence on
account of death of Kamaiah on 02.09.1988 and as a result, she
became the absolute owner of all the suit schedule properties
under the registered Will dated 01.01.1975. The said Kamaiah
was under the care and protection of the defendant till his death
and the suit schedule properties were managed by the
defendant. After the death of the testator Kamaiah, the
defendant has been in peaceful possession and enjoyment of suit
schedule properties as owner. It is the defendant who has
performed the obsequies of Kamaiah.
7. The allegation made in the plaint that she was
dispossessed about 2 years back and panchayath was convened
are all false and that the plaintiff is the exclusive owner of the
suit schedule properties is denied. It is contended that the
plaintiff is not entitled for any relief of declaration of title and
possession and also the plaintiff had got issued a legal notice
dated 25.09.1992 to the defendant claiming partition. The
defendant replied to the same on 15.10.1992 stating that
Kamaiah had executed the registered Will dated 01.01.1975 and
that the suit schedule properties have vested with the
defendant.
8. The Trial Court having considered the pleadings of
the plaintiff and defendant and framed the following issues:
(i) Whether the plaintiff proves that she is the
daughter of Kamaiah?
(ii) Whether the plaintiff prove that she is the
owner of the suit schedule properties?
(iii) Whether the defendant prove that Kamaiah
executed registered Will dated 01.01.1975 in
her favour bequeathing all the suit schedule
properties to her?
(iv) Whether the plaintiff is entitled to the
declaration that she is the owner of the suit
schedule properties?
(v) Whether the plaintiff is entitled to possession
of the suit schedule properties from the
defendant?
(vi) Whether the plaintiff is entitled to mesne
profits? If so at what rate?
(vii) What order or decree?
9. The plaintiff on her behalf examined her legal heir
plaintiff No.1 as PW1 and also examined 3 witnesses PW2 to
PW4 and got marked documents Ex.P1 to Ex.P32. On behalf of
the defendants, defendant No.1 is examined as DW1 and
examined 5 witnesses as DW2 to DW6 and got marked
documents Ex.D1 to Ex.D41.
10. The Trial Court having considered both oral and
documentary evidence, answered issued No.1 by coming to the
conclusion that the plaintiff is the daughter of deceased Kamaiah
and also answered the additional issue No.1 in the affirmative by
coming to the conclusion that defendant No.2 proves that his
mother Kamakka purchased Item No.2 of the suit schedule
properties under a registered sale deed dated 18.10.1960. The
Trial Court answered issue No.2 partly in the affirmative in to the
conclusion that the plaintiff is the absolute owner of the property
i.e., item No.1 excluding item No.2. The Trial Court having
considered both oral and documentary evidence answered issue
No.3 in the negative in coming to the conclusion that defendant
fails to prove that Kamaiah executed registered Will dated
01.01.1975 in her favour bequeathing all the suit schedule
properties to her and consequently, granted the relief of
declaration partly in favour of the plaintiff and so also plaintiff is
entitled for possession of the suit schedule properties from the
defendant, answering issue No.5. Hence, granted the decree in
favour of the plaintiff and ordered to file separate petition to
determine the mesne profits by answering issue No.6.
11. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed by the defendant before the
appellate court in R.A.No.305/2007. In the said appeal, it is
contended that the Trial Court committed an error in not
appreciating the material evidence available on record and also
failed to examine whether the suit is filed within the period of
limitation or not and proceeded to pass an erroneous order. The
Trial Court fails to take note of the fact that admittedly, the suit
was filed on 13.03.1996. It is also alleged that panchayat was
arranged and two years back she was dispossessed and hence,
she filed the suit claiming that she was dispossessed ought to
have filed the suit within a period of six months from the date of
forcible dispossession by Smt.Siddamma under Section 6(2)(a)
of the Specific Relief Act.
12. It is also contended that the suit was filed belatedly
and the Trial Court committed an error in coming to the
conclusion that although there was a ration card, in earlier days,
the rich people were not taking the ration card and it was not
compulsory at that time. Generally, in olden times, the marriage
of the girls would be celebrated in their young age. Hence, the
name of the plaintiff would not enter even in the voter's list with
her father and the said observation is erroneous eventhough, no
documents with evidence are available to prove that plaintiff is
the daughter of deceased Kamaiah. In the absence of
documentary evidence, the finding of the Trial Court is erroneous
and it requires interference.
13. The First Appellate Court having considered the
grounds urged in the appeal memo, formulated the following
point for consideration:
i) Whether the appellants being the LRs of
defendant No.1 have made out just and
sufficient ground to allow I.A.No.2 under Order
41 Rule 27 CPC seeking permission to adduce
additional evidence as prayed for?
ii) Whether the appellants being the defendant
Nos.3 and 4 have made out just and sufficient
of CPC for appointing a Commissioner?
iii) Whether defendants 3 and 4 - appellants
proved that judgment and decree under appeal
is perverse and bad in law and as such, same
is liable to be set aside.
14. The First Appellate Court answered point No.1 in the
affirmative against respondent Nos.1 and 2 opponents. The
appellate court also answered point No.2 in the negative in
respect of an application filed under Order 26 Rule 9 of CPC and
answered the other point for consideration in the negative and
the finding is not perverse and dismissed the appeal in coming to
the conclusion that there is no perversity in the finding of the
Trial Court in accepting the plaintiff as the daughter of Kamaiah
and disbelieved the case of the defendant that there was a Will.
Being aggrieved by the judgment and decree of the Trial Court
and also the First Appellate Court, the present Regular Second
Appeal is filed before this court.
15. This court having taken note of the grounds urged in
the second appeal formulated the following substantial questions
of law:
i) Whether the courts below have committed
perversity in the manner of consideration of
the evidence available on record with regard
to the proof of the document at Ex.D1 dated
01.01.1975 and in that regard whether the
reasons stated by the courts below would
constitute suspicious circumstance as
enumerated and decided by several decisions?
ii) Whether the Lower Appellate court being the
final court to render finding of fact could have
rejected the application filed under Order 26
Rule 9 and 10A of CPC based on the reasoning
assigned by it, when the parties in a normal
circumstance can be provided an opportunity
of tendering such evidence for arriving at a
finding of fact even before the lower appellate
court?
iii) Whether the courts below have committed
perversity in the manner of appreciation of
evidence with regard to contention regarding
the plaintiff being the daughter of late
Kamaiah?
16. This Court having already answered substantial
question of law No.(ii) and now since the report of the
Commissioner is received, only substantial questions of law
No.(i) and (iii) arise for consideration of this Court as referred in
paragraph No.15 of this judgment in view of subsequent
development and the report of the Commissioner is filed.
17. Having considered substantial questions of law No.(i)
and (iii) and also the contention of the learned counsel for the
appellants and also learned counsel appearing for caveator-
respondent No.1 and learned counsel for respondent No.2(a) and
(b) and also the grounds urged before this Court after having
received report of the Commissioner, learned counsel for the
appellants would vehemently contend that now the report is
received and the appellants have not filed any objections to the
report of the Commissioner. But, learned counsel appearing for
the legal representatives of respondent No.1 has filed objections
to the FSL report and seeks an opportunity to cross examine the
commissioner.
18. Learned counsel appearing for the appellants would
vehemently contend that in respect of the recitals of the Will is
concerned, no issues are framed. The very executant of the Will
himself stated that he has no issues, hence question of claiming
that the plaintiff is the daughter of the executant cannot be
accepted and the Trial Court committed an error in coming to
the conclusion that plaintiff is the daughter of executant.
Learned counsel would vehemently contend that legal notice was
issued in the year 1992 before filing the suit and reply was
given, wherein it is specifically pleaded that executant executed
Will in favour of the defendants. Learned counsel would
vehemently contend that in the suit nothing is pleaded with
regard to validity of the Will and now, the plaintiff cannot
contend that the Will is created.
19. Learned counsel would vehemently contend that
notice was given on 25.09.1992 and reply was given on
15.10.1992, wherein specific defence is set out that Will was
executed. But, not averred anything in the plaint that it is
created or came into existence under suspicious circumstances.
It is also contended that the suit was filed on 13.03.1996 after
four years of issuance of legal notice and not questioned the Will
for a period of four years, even though specific pleading was
made that Will is in existence. It is contended that executant
died after 13 years of execution of the registered Will in the year
1975 and the said Will was not disputed in the plaint and
contend that written statement was filed on 22.08.1996. The Will
was propounded in the reply notice itself and the same was not
disputed and even after filing of the written statement, not
disputed the Will and not challenged the Will throughout. It is
further contended that there is no pleading regarding invalidity
of the Will. But, the Trial Court committed an error in referring
paragraph No.45 that Will is disputed and in the absence of such
dispute and also any material, the said reasoning is not correct.
20. Learned counsel would vehemently contend that Will
is not surrounded with any suspicious circumstances. It is
contended that P.W.1 was aged about 5 years on the date of the
Will. The witnesses, who were examined before the Court also
speak about Ex.P2 and not Ex.D1 and they also speak about the
Will of the year 1997 Will and not 1975. Learned counsel would
contend that P.W.3 is residing more than 10 kms. away from the
plaintiff and so also P.W.4 is residing about 15 kms away from
plaintiff. The finding given is also in respect of the Will dated
05.05.1997 and no finding is given in respect of the Will of the
year 1975. Learned counsel would contend that evidence of
P.Ws.1 to 4 cannot be relied upon, since there is no pleading and
no value can be attached to their evidence. It is contended that
in the cross-examination of D.W.1, nothing is elicited and D.W.2
is an attesting witness and father of the appellants, who speaks
about attestation. The evidence of D.W.3 is also very clear
regarding Will is concerned and nothing is elicited.
21. Learned counsel also relied upon the judgment of the
Apex Court in PPK GOPALAN NAMBIAR VS. PPK
BALAKRISHNAN NAMBIAR AND OTHERS reported in AIR
1995 SC 1852 and relies upon head note (B), wherein
discussion is made with regard to validity of the Will and
discrepancy in evidence of attestor would not vitiate validity of a
registered Will which was duly endorsed by Registrar, whole of
estate given to son in exclusion of daughter, not itself sufficient
to generate suspicion and the Will executed and registered 8
years prior to death of testator, no evidence or statement made
regarding invalidity of Will in pleadings. Nothing was stated with
regard to alleged pressure brought on executor of Will, suspicion
raised regarding validity of Will is without any basis. Learned
counsel referring this judgment would contend that testator
passed away after 13 years of execution of the Will and with
regard to invalidity of the Will is concerned, nothing is pleaded.
22. Learned counsel also relied upon judgment in
SAVITHRI AND OTHERS VS. KARTHYAYANI AMMA AND
OTHERS reported in ILR 2008 KAR 2485 (SC). Learned
counsel referring this judgment would vehemently contend that
in this judgment also, the Apex Court discussed that when the
Will was registered and not cancelled, though testator lived for 7
years after its execution, fact by itself is sufficient to uphold the
Will.
23. Learned counsel also in support of his argument
would contend that the FSL report is very clear with regard to
the document of Ex.D1 and Ex.D37 bears the signature of the
testator and the Will is also registered and minor discrepancies
will not take away the case and it will not affect the case of the
defendants, since Will is registered and executed in the year
1975 and he died after 13 years.
24. Learned counsel with regard to substantial question
of law No.(iii) is concerned with regard to the parentage would
contend that the Trial Court and the Appellate Court failed to
consider the material on record. The defendants denied the very
relationship between the plaintiff and the testator of the
document. Learned counsel with regard to the parentage is
concerned would contend that no genealogy is pleaded and
produced and no documentary evidence is produced before the
Trial Court and only an oral evidence is adduced before the Court
and paragraph No.14 of the judgment of the Trial Court is
erroneous. The Trial Court failed to take note of deposition of
P.W.1 and the Trial Court taken note that Exs.P29 and 30 cannot
be believed. Learned counsel also would vehemently contend
that in the very same documents, the very age and house
number are different. Ex.P1 is the death certificate of plaintiff
and the Trial Court committed an error in accepting the oral
evidence without any documentary evidence regarding
parentage is concerned.
25. Learned counsel relied upon the judgment reported
in 2014 AIR SCW 155 and brought to notice of this Court
paragraph No.21, wherein a discussion was made that the
appellants/defendants have not produced any record with regard
to the property stands in their name and also made an
observation that High Court rightly answered in favour of the
defendants in the 'affirmative' for the reason the Courts below
without considering the denial made by the defendant No.1 with
regard to the ownership claim made by the
appellants/defendants in respect of the suit schedule property
have come to the erroneous conclusion that there is no pleading
of fact by the defendants/respondents and lack of evidence
available in favour of the plaintiff to prove the title to the suit
schedule property. Learned counsel would vehemently contend
that the finding reached by both the Trial Court and the First
Appellate Court is perverse and liable to be interfered with in
second appeal. Learned counsel referring this judgment would
also vehemently contend that when there is no specific pleading
with regard to the validity of the document of Will is concerned,
the finding that Will has not been proved is erroneous.
26. Learned counsel for the appellants would further
contend that when the material does not disclose anything about
the fact that the plaintiff is the daughter executant, both the
Courts ought not to have come to a conclusion that she is the
daughter. Learned counsel would vehemently contend that, in
the absence of documentary proof regarding her parentage is
concerned, the Trial Court committed an error in answering issue
No.1 and the First Appellate Court committed an error in coming
to the conclusion that plaintiff has established that she is the
daughter of the executant and hence, it requires interference by
setting aside the order.
27. The learned counsel for the appellants, in support of
his arguments, relied upon the judgment in S BASAPPA AND
OTHERS VS GANGAMMA AND OTHERS reported in AIR 2022
KARNATAKA 126, wherein discussion was made regarding
proof of relationship under Section 50 of the Evidence Act, 1872
with regard to the fact that the suit for declaration by adopted
son, adopted son claiming to be in joint possession of suit
properties during lifetime of adopting father and after his father's
death, he continues to be in possession, adopted son did not
adduce evidence of any credible person to establish his
relationship, no oral evidence to prove adoption and in absence
of proof of adoption refusal to grant declaration held that the
same is proper. In paragraph 15, it is held that reliance placed
upon the voters' list cannot also be of any consequence, since an
entry in the voter's list that he was the son of Savandaiah
cannot establish the adoption.
28. The learned counsel also relied upon the judgment in
INAMDAR (DEAD BY L.RS.) AND ANOTHER VS
AMEERSAHEB AND OTHERS reported in 1995 (1) KAR L J
663, wherein it is held that birth and death extracts, document
to be used only to prove the date of birth or death of a particular
person mentioned in the extract in order to establish that the
said entry relates to a particular person. Evidence is necessary.
Paternity of a person cannot be determined on the basis of mere
entries in the extract. Party concerned to lead some other
evidence to prove that a particular person was born to a
particular man when that point is in issue in the case and relied
upon paragraph 13 of the said judgment.
29. The learned counsel also relied upon the judgment in
BASAYYA AND OTHERS VS MADOLAYYA AND OTHERS
reported in 1982(2) KAR L J 485, wherein also discussed
Section 50 of the Evidence Act, 1872 with regard to the proof of
preferential heirship is concerned which does not make evidence
of mere general reputation (without conduct) admissible as proof
of relationship, and the conduct must be of the person who fulfils
the essential conditions of Section 50 and relied upon
paragraphs 4 to 14 of the said judgment.
30. The learned counsel also relied upon the judgment in
KARIAPPA VS N JAYAMMA AND OTEHRS reported in 1966
(1) MYS L J 235, wherein also discussed Section 50 of the
Evidence Act with regard to relationship, opinion evidence as to
relevancy is concerned and held that it is necessary that the
opinion must be expressed by conduct as to the existence of
such relationship and the person whose opinion is expressed by
conduct must be a person who has special means of knowledge
on the particular subject of relationship. Evidence of general
reputation is not admissible as evidence of relationship and
referred pages 238, 240 and 242 in support of his arguments.
31. The learned counsel also relied upon the judgment in
DOLGOBINDA PARICHA VS NIMAI CHARAN MISRA AND
OTHERS reported in AIR 1959 SC 914, wherein also discussed
Sections 50 and 60 of the Evidence Act and regarding opinion
evidencing the relationship, scope and applicability of Section 50
is indicated, opinion as expressed by conduct, nature of proof is
stated and relied upon paragraphs 6, 7 and 24 of the said
judgment. The learned counsel for the appellants relying upon
these judgments would vehemently contend that the relationship
of the plaintiff that she is the daughter of the executant has not
been established. Hence, Section 50 of the Evidence Act, 1872 is
not complied.
32. Learned counsel for the appellants also relied upon
the judgment in ALAMELU AMMAL AND ANOTHER VS. S.
RANI AND OTHERS reported in AIR 2017 SC 2612 and
contend that allowing the application by Appellate Court under
Order 41 Rule 28 is necessary to be followed and document
should have been proved and passing of decree by Appellate
Court simply by acting upon document, without following
procedure is erroneous.
33. Learned counsel also relied upon the judgment in
SARADA (SMT) AND OTHERS VS. MANILLOTH KOMBRA
RAJENDRAN reported in (1996) 8 SCC 345, wherein also an
observation is made that Appellate Court ought to have received
the agreement as additional evidence and considered the effect
thereof by either recording the evidence of the parties or calling
a finding in this behalf from the Trial Court and relied upon
paragraph No.5 of the Trial Court.
34. The counsel also relied upon the judgment in
SUGAPPA AND ANOTHER VS. SHIVASHANKERAPPA AND
OTHERS reported in 2015 (4) KCCR 3499 with regard to Order
41 Rule 27 is concerned, wherein it is held that if the appellate
Court intends to dismiss the said application, it has to pronounce
the judgment on merits. If the appellate Court intends to allow
the application, then it has to allow the application and permit
the concerned parties to lead additional evidence and defer the
decision on merits.
35. The counsel also relied upon the judgment in
SHANTHAVEERAPPA VS. K.N. JANARDHANACHARI reported
in 2007 (3) KCCR SN 159 and contend that, if additional
evidence is allowed to be produced by appellate Court, either
itself can take such evidence or direct Trial Court to take it and
to send it to appellate Court. Learned counsel referring this
judgment would vehemently contend that the Appellate Court
committed an error in passing such a judgment.
36. Learned counsel for the appellants also in his
argument would vehemently contend that the Apex Court in the
judgment with regard to proving of the Will is concerned, given
certain guidelines in the judgment in CIVIL APPEAL NO.3351
OF 2014 dated 21.09.2023. The counsel brought to notice of
this Court paragraph Nos.10(ii), (iii), (vi), (x) and (xi) and also
paragraph Nos.12 to 16. Learned counsel referring this judgment
brought to notice of this Court that it is not required to be
proved with mathematical accuracy, but the test of satisfaction
of the prudent mind has to be applied.
37. In paragraph No.10(iii) of the said judgment, it is
held that a Will is required to fulfill all the formalities required
under Section 63 of the Succession Act, that is to say:
"(a) 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 the
said signature or affixation shall show that it
was intended to give effect to the writing as a
Will;
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary;
(c) Each of the attesting witnesses must have
seen the testator sign or affix his mark to the
Will or has seen some other person sign the
Will, in the presence and by the direction of
the testator, or has received from the testator
a personal acknowledgment of such
signatures;
(d) Each of the attesting witnesses shall sign the
Will in the presence of the testator, however,
the presence of all witnesses at the same time
is not required."
38. In paragraph No.10(vi) of the said judgment, it is
observed that if one attesting witness can prove the execution of
the Will, the examination of other attesting witnesses can be
dispensed with and in paragraph No.10(x), it is observed that
one who alleges fraud, fabrication, undue influence etcetera has
to prove the same. However, even in the absence of such
allegations, if there are circumstances giving rise to doubt, then
it becomes the duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing explanation. In
paragraph No.10(xi), it is observed that suspicious
circumstances must be 'real, germane and valid' and not merely
'the fantasy of the doubting mind'. Whether a particular feature
would qualify as 'suspicious' would depend on the facts and
circumstances of each case. Any circumstance raising suspicion
legitimate in nature would qualify as a suspicious circumstance
for example, a shaky signature, a feeble mind, an unfair and
unjust disposition of property, the propounder himself taking a
leading part in the making of the Will under which he receives a
substantial benefit, etc.
39. Learned counsel also brought to notice of this Court
paragraph Nos.12 to 14 of the said judgment, wherein discussion
was made in paragraph No.12 that a careful perusal of the
relevant material on record and applying the provisions and the
case laws it is evident that the Will was duly executed by the
testator in the presence of witnesses out of his free Will in a
sound disposing state of mind and the same stands proven
through the testimony of one of the attesting witnesses, namely,
Suraj Bahadur Limboo who was examined as PW2 by the Civil
Court. This witness categorically states that the testator
executed the Will in question and, both he and the testator
signed the Will in the presence of each other.
40. Learned counsel for the appellants also relied upon
the judgment in CIVIL APPEAL NO(S) 13192 OF 2024 dated
02.01.2025. Learned counsel referring this judgment would
vehemently contend that detail discussion was made that
requisites of proving of a Will are well established and discussion
was made with regard to judgment of the Apex Court in MEENA
PRADHAN AND OTHERS VS. KAMLA PRADHAN AND
ANOTHER reported in (2023) 9 SCC 734 and also the
judgment of the Apex Court in SHIVAKUMAR AND OTHERS
VS. SHARANABASAPPA AND OTHERS reported in (2021) 11
SCC 277 and principles summarized therein are also taken note
of and in paragraph No.13, discussed with regard to Section
63(c) of the Succession Act i.e., the language of Section 63(c) of
the Act uses the word 'OR'. It states that each Will shall be
attested by two or more witnesses who have seen the Testator
sign or affix his mark on the Will OR has seen some other
persons sign the Will in the presence and by the direction of the
Testator OR has received a personal acknowledgment from the
Testator of his signature or mark etc. What flows therefrom is
that the witnesses who have attested the Will ought to have
seen the Testator sign or attest his mark OR have seen some
other persons sign the Will in the presence of and on the
direction of the Testator. In paragraph No.14 of the judgment, it
is observed that the testimony of DW-1 is clear that he had seen
the deceased affix his mark on the Will. That alone would ensure
compliance of Section 63(c). The part of the Section that
employs the term 'direction' would come into play only when the
attestor to the Will would have to see some other person signing
the Will. Such signing would explicitly have to be in the presence
and upon the direction of the Testator and set aside the
judgment of the High Court and restored the judgment of the
First Appellate Court that Will is valid.
41. Learned counsel referring this judgment would
vehemently contend that the very execution of Will has been
proved by examining the witnesses and the document was
executed in the year 1975 and the executant died in the year
1988 after 13 years and the evidence of witnesses examined by
the plaintiff herself categorically says that till his death, he was
having sound state of mind and the witnesses also say that on
the direction of the testator itself, signed the document and in
their presence, affixed the signature and executant also signed
the Will in their presence. Hence, both the Courts ought not to
have disbelieved the document of Ex.D1.
42. Learned counsel for the appellants would vehemently
contend that this Court while dealing with substantial question of
law No.(ii) held that the scientific expert opinion is necessary
and sent the document of Will to the handwriting expert and the
report available before this Court is that signature belongs to the
executant. Under the circumstances, the matter requires to be
reviewed regarding both question of fact and substantial
question of law, since both the Courts have committed an error
in appreciating the same and given the finding as against the
material available on record and finding of Trial Court and the
First Appellate Court is perverse.
43. Per contra, learned counsel appearing for caveator-
respondent No.1 in his argument would vehemently contend that
the Trial Court and the First Appellate Court have given finding
with regard to the factual aspects is concerned and in the second
appeal, this Court cannot consider the evidence once again and
this Court has to consider only the substantial questions of law
and when the finding was given that plaintiff was the daughter of
executant, whether Kamakka is daughter of Kamaiah does not
arise, though contend that Will is executed and the said Will is
disputed. Learned counsel would vehemently contend that when
the plaintiff examined two witnesses as P.Ws.2 and 3, they were
aged about 60 years and 70 years respectively and they were
having knowledge about the relationship between the executant
and the plaintiff and nothing is elicited from P.Ws.1 to 3. It is
also contended that P.W.4, who is examined before the Trial
Court was aged about 80 years and his evidence is also credible.
Learned counsel would contend that P.W.5 also admits that
plaintiff is daughter of Kamaiah and P.W.6 is also witness to the
Will and admits that plaintiff is daughter of executant. The
counsel would vehemently contend that Trial Court in detail
discussed in paragraph No.15 of the judgment and both the
Courts accepted the contention of the plaintiff. Though the
defendants examined the witnesses to prove the Will dated
01.01.1975, the evidence of D.W.2-attesting witness is not
trustworthy. It is evident that stamp paper was purchased earlier
and the document was registered on 06.01.1975 and not on the
date of execution of document i.e., on 01.01.1975 and witnesses
speak about the fact that document was registered on the same
day, but the same is contrary to the document available on
record.
44. Learned counsel would vehemently contend that
evidence of D.W.2 cannot be relied upon, since the children are
beneficiaries of the Will and D.W.2 says that testator
Narasimhaiah has not signed the Will in his presence, but D.W.2
claims that his signature is taken in the Village. The evidence of
D.W.3 is contrary to other witnesses and he also says that
registration of the document was done on the very same day
and he is a Village Accountant. It is contended that there is an
inconsistency in the evidence available on record and the same
is taken note of by the Trial Court and the First Appellate Court
and the name of Narasimhaiah was not found in Sl.No.2 and
there was an insertion. Learned counsel would vehemently
contend that since the Will was not proved, both the Courts have
given a concurrent finding. The counsel would further contend
that the evidence of D.Ws.5 and 6 is not disputed and they
deposed that plaintiff is the daughter of executant and contend
that when there is no perversity and the Will has not been
proved and none of the witnesses depose that they were present
on 06.01.1975, both the Courts rightly not accepted the case of
the defendants. Learned counsel would vehemently contend
that disinheriting the daughter is one of the suspicious
circumstance and none of the witness deny that plaintiff is not
the daughter and evidence of P.Ws.1 to 4 is in conformity with
Section 50 of the Evidence Act. The defendants not denied
throughout that plaintiff is not the daughter of Kamaiah and
except stating that I do not know, there is no specific denial.
45. Learned counsel for the caveator-respondent No.1 in
support of his argument relied upon the judgment in
DOLOBINDA PARICHA VS. NIMAI CHARAN MISRA AND
OTHERS reported in 1959 SUPP (2) SCR 814 and brought to
notice of this paragraph No.6, wherein discussion was made
regarding Section 50 of the Evidence Act "Of the Relevancy of
Facts" - i.e.,
"50. When the Court has to form an opinion as
to the relationship of one person to another, the
opinion, expressed by conduct, as to the existence of
such relationship, of any person who, as a member
of the family or otherwise, has special means of
knowledge on the subject, is a relevant fact."
46. It is further observed that on a plain reading of the
section it is quite clear that it deals with relevancy of a particular
fact. It states in effect that when the Court has to form an
opinion as to the relationship of one person to another, the
opinion expressed by conduct as to the existence of such
relationship of any person who has special means of knowledge
on the subject of that relationship is a relevant fact. It is further
discussed in detail that if the person fulfils that condition, then
what is relevant is his opinion expressed by conduct. Opinion
means something more than more retailing of gossip or of
hearsay; it means judgment or belief, that is, a belief or a
conviction resulting from what one thinks on a particular
question. Now, the "belief" or conviction may manifest itself in
conduct or behaviour which indicates the existence of the belief
or opinion. In paragraph No.7 of the said judgment, the Apex
Court also discussed with regard to it is necessary to state here
that how the conduct or external behaviour which expresses the
opinion of a person coming within the meaning of Section 50 is
to be proved is not stated in the section.
47. Learned counsel also relied upon the judgment in
JAGDISH CHAND SHARMA VS. NARAIN SINGH SAINI
(DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS
reported in (2015) 8 SCC 615, wherein discussion was made
with regard to Section 71 of the Evidence Act, 1872 and held
that Section 71 cannot be invoked as substitute to mandatory
requirements of Section 68 of Evidence Act r/w. Section 63(c) of
Succession Act, execution of Will cannot be sought to be proved
by other evidence under Section 71 on failure of attesting
witness to prove by credible evidence execution and attestation
as required under Section 68 of Evidence Act r/w. Section 63(c)
of Succession Act and Section 63(c) is mandatory and failure or
deficiency in compliance would invalidate document.
48. Learned counsel also relied upon the judgment in
CIVIL APPEAL NO.9683 OF 2019 in RAJ KUMARI AND
OTHERS VS. SURINDER PAL SHARMA delivered on
17.12.2019, wherein also discussion was made with regard to
Section 63 of Indian Succession Court and the same is extracted
and also discussed Sections 68 and 71 of the Evidence Act,
wherein also earlier judgment of the Apex Court i.e., JAGDISH
CHAND SHARMA's case was discussed and in paragraph No.28,
it is observed that even if we are to accept signatures of the
testator and the witnesses, we cannot ignore "other evidence"
that Suhagwanti and her family members did not understand the
true nature of the document executed. There are substantial and
good reasons to legitimately suspect and question execution of
the Will, which Surinder Pal Sharma, as the propounder of the
Will, has not been able to repel and remove so as to satisfy this
Court that the Will was validly executed.
49. Learned counsel also relied upon the judgment in
SHARMA ENTERPRISES VS. HOTEL LEELA VENTURE LTD.
reported in 2009 SCC ONLINE DEL 844. Learned counsel
referring this judgment would contend that the Delhi High Court
also taken note of Order 13 Rule 4 and Order VIII and Section
34 i.e., failure to exhibit make an endorsement on a document
of an exhibit mark under Orde4r 13 Rule 4 of the Code of Civil
Procedure, whether it preclude the consideration of the
document, if the evidence has already been led about that
document and in the absence of verification of written statement
of the defendant, by a duly authorized person, consequences,
grant of interest pendant lite is relevant consideration and held
that absence of an exhibit mark on a document will not preclude
the Court from considering the said document if evidence in
respect of the proof of the document has been led.
50. Learned counsel also relied upon the judgment in S.
SUBRAMANIAN VS. S. RAMASAMY AND OTHERS reported in
(2019) 6 SCC 46 and brought to notice of this Court relevant
paragraph Nos.7.3 to 7.7, wherein it is held that while deciding
the second appeal under Section 100 CPC, the High Court is not
required to re-appreciate the entire evidence on record.
51. Learned counsel also relied upon the judgment in
NAVANEETHAMMAL VS. ARJUNA CHETTY reported in (1996)
6 SCC 166 and brought to notice of this Court paragraph Nos.11
and 21, wherein the Apex Court held that under Section 100
CPC, the High Court cannot re-appreciate the evidence.
52. Learned counsel also relied upon the judgment in
KONDIBA DAGADU KADAM VS. SAVITRIBAI SOPAN GUJAR
AND OTHERS reported in (1999) 3 SCC 722 and brought to
notice of this Court paragraph Nos.3 to 5 that it is not within the
domain of the High Court to investigate the grounds on which
the findings were arrived at, by the last Court of fact, being the
first appellate Court and concurrent finding however erroneous
cannot be disturbed under Section 100 CPC.
53. Learned counsel also relied upon the judgment in
DOLGOBINDA PARICHA VS. NIMAI CHARAN MISRA AND
OTHERS reported in AIR 1959 SC 914 and brought to notice of
this Court paragraph Nos.7 to 15, wherein discussion was made
with regard to Section 50 of the Evidence Act.
54. Learned counsel also relied upon the judgment in
BHARPUR SINGH AND OTHERS VS. SHAMSHER SINGH
reported in (2009) 3 SCC 687 and brought to notice of this
Court paragraph Nos.22 and 23, wherein discussed that
propounder should remove all suspicious circumstances
shrouding the making of the Will by cogent and convincing
explanation and listed out the suspicious circumstances
surrounded in execution of the Will.
55. Learned counsel also relied upon the judgment in
SMT. JASWANT KAUR VS. SMT. AMRIT KAUR AND OTHERS
reported in (1977) 1 SCC 369 and brought to notice of this
Court paragraph Nos.13, 17, 18, 19 and 21, wherein listed out
the various circumstances that act as suspicious circumstances
and also inter alia observed that Section 63 of the Succession
Act requires a will to be attested, it cannot be used as evidence
until, as required by section 63 of the Evidence Act, one
attesting witness at least has been called for the purpose of
proving its execution, if there be an attesting witness alive and
subject to the process of the court and capable of giving
evidence.
56. Learned counsel also relied upon the judgment in
JANKI NARAYAN BHOIR VS. NARAYAN NAMDEO KADAM
reported in (2003) 2 SCC 91. Learned counsel referring this
judgment brought to notice of this Court paragraph Nos.7, 8, 11
and 14, wherein discussion was made that Section 71-"Proof
when attesting witness denies the execution" can be taken only
when the attesting witness denies or does not recollect the
execution of the document and High Court cannot reverse the
judgment of the First Appellate Court on finding of fact in the
absence of any substantial question of law.
57. Learned counsel also relied upon the judgment in
CHENNADI JALAPATHI REDDY VS. BADDAM PRATAPA
REDDY (DEAD) THROUGH LEGAL REPRESENTATIVES AND
ANOTHER reported in (2019) 14 SCC 220 and brought to
notice of this Court paragraph Nos.10, 11, 12, 13, wherein at
paragraph No.10, it is held that it is well settled that the Court
must be cautious while evaluating expert evidence, which is a
weak type of evidence and not substantive in nature. It is also
settled that it may not be safe to solely rely upon such evidence,
and the Court may seek independent and reliable corroboration
in the facts of a given case. Generally, mere expert evidence as
to a fact is not regarded as conclusive proof of it.
58. Learned counsel also relied upon the judgment in
SHASHI KUMAR BANERJEE AND OTHERS VS. SUBODH
KUMAR BANERJEE SINCE DECEASED AND AFTER HIM HIS
LEGAL REPRESENTATIVES AND OTHERS reported in 1963
SCC ONLINE SC 114 and brought to notice of this Court
paragraph Nos.22 and 24 and in paragraph No.22, it is held that
besides it is necessary to observe that expert's evidence as to
handwriting is opinion evidence and it can rarely, if ever, take
the place of substantive evidence. Before acting on such
evidence it is usual to see if it is corroborated either by clear
direct evidence or by circumstantial evidence. In the present
case all the probabilities are against the expert's opinion and the
direct testimony of the two attesting witnesses which we accept
is wholly in consistent with it.
59. Learned counsel for the caveator-respondent No.1
referring these judgments would vehemently contend that when
both the Courts have appreciated the material in proper
perspective and there is no perversity and even if the finding is
erroneous, the same cannot be reversed in second appeal and
both the Courts have listed out the suspicious circumstances
while not accepting the document of Ex.D1.
60. Learned counsel for the appellants, in reply to the
arguments of the learned counsel for the caveator-respondent
No.1 would contend that the recitals in the Will itself is very clear
that the registered document of Will was executed 13 years
back, wherein the executant himself has categorically stated that
he has no issues. The counsel would vehemently contend that
though the defendants rely upon second Will dated 05.05.1997,
the same came into existence in suspicious circumstances. The
counsel would vehemently contend that no value can be
attached to the evidence of P.Ws.1 to 4, since there is no
pleading with regard to the Will is concerned. In the cross-
examination of D.Ws.1 and 2, nothing is elicited, as they are
attesting witnesses and evidence of D.W.3 is very clear
regarding attestation is concerned and also relied upon the
judgment of the Apex Court in PPK GOPALAN NAMBIAR's case
reported in AIR 1995 SC 1852 and after 13 years of execution
of the document, the testator has passed away and with regard
to the invalidity of the Will, there is no pleading and FSL report is
not disputed and also other judgment of SAVITHRI case
referred supra aptly applicable. Learned counsel also would
contend that in respect of substantial questions of law regarding
parentage is concerned, no document is placed, except oral
evidence. Exs.P29 and 30 cannot considered as they pertain to
executant and his wife. Hence, it requires interference.
61. Having heard learned counsel for the appellants and
learned counsel for the respondents and also the principles laid
down in the judgments referred supra, this Court has to analyze
the material on record, in view of the substantial questions of
law framed by this Court at the time of admitting the second
appeal. Before considering the substantial questions of law, this
Court would like to make it clear that this Court has framed
substantial question of law No.(ii)-whether the Lower Appellate
court being the final court to render finding of fact could have
rejected the application filed under Order 26 Rule 9 and 10A of
CPC based on the reasoning assigned by it, when the parties in a
normal circumstance can be provided an opportunity of
tendering such evidence for arriving at a finding of fact even
before the lower appellate Court and the same has been
answered by this Court dealing with the matter after hearing the
arguments on main and only dealt with substantial question of
law No.(ii) and answered the same as 'affirmative' and referred
the document of Ex.D1-Will and other admitted documents to
handwriting expert and handwriting expert has given the report
that the signature available in Ex.D1 belongs to executant
considering the other admitted documents.
62. It has to be noted that the appellants have not filed
any objections, but the caveator-respondent No.1 has filed
objections to the Commissioner report. In the objections at
paragraph No.19, it is stated that cross-examination of the
handwriting expert is required. Having taken note of the report
and the objections, this Court has to consider whether an
opportunity has to be afforded to cross-examine the
Commissioner. But, it has to be noted that the respondents
disputed the signature available in Ex.D1 and other document is
not disputed and it is the claim of the appellants that Will was
executed long back in the year 1975 and the executant passed
away in the year 1988 after 13 years and also other document is
sent along with Ex.D1. The respondents also not dispute the
same. When such being the case and admitted documents and
disputed document of Ex.D1 were sent to handwriting expert,
now cannot seek for an opportunity to cross-examine the
witness and handwriting opinion is only whether the signature
available on Ex.D1 and other admitted document is one and the
same and scientific report given is also one and the same.
Hence, question of giving an opportunity does not arise.
63. Now, this Court would like to consider other two
substantial questions of law which were not answered earlier
and remains for consideration i.e., substantial questions of law
Nos.(i) and (iii).
64. The substantial question of law No.(i) framed by this
Court is Whether the courts below have committed perversity in
the manner of consideration of the evidence available on record
with regard to the proof of the document at Ex.D1 dated
01.01.1975 and in that regard whether the reasons stated by the
courts below would constitute suspicious circumstance as
enumerated and decided by several decisions. Having taken
note of substantial question of law No.(i) is concerned, now the
scope of this Court is whether both the Courts have committed
perversity in the manner of considering the evidence with regard
to proof of document of Ex.D1 and also whether the reasons
given by the Courts below constitutes suspicious circumstances.
In this regard, the Court has to consider the material on record.
In order to answer the substantial question of law, whether the
order of both the Trial Court and the First Appellate Court suffers
from its perversity. Hence, this Court again look into the
evidence on record whether both the Courts committed an error,
particularly any perversity taking note of the document of Ex.D1
i.e., dated 01.01.1975 with regard to proving of the document.
This Court would like to consider the document of Ex.D1 on
which basis the appellants claim that the suit schedule properties
are bequeathed in favour of the appellants. It is not in dispute
that the document of Ex.D1 was registered in the year 1975 and
the executant passed away in the year 1988 after lapse of 13
years. It is also important to note that the defendants examined
witnesses to prove the same. D.W.1 in her evidence says that
executant had executed the Will in favour of Siddamma since
executant had no wife and children. The above said Kamaiah
executed the Will on 01.01.1975 bequeathing all the suit
schedule properties which are his own properties in favour of the
beneficiaries and Will came into operation subsequent to his
death. It is also her evidence that she has taken care of
Kamaiah during his life time and during his death, she has
performed his obsequious, who died in her house only and
plaintiff never performed funeral ceremony of Kamaiah and the
suit schedule properties were enjoyed by her and Kamaiah
individually. It is contended that plaintiff is nowhere related to
said Kamaiah as well as the suit schedule properties and she
cannot succeed to the estate of deceased kamaiah. In support
of her contention, also produced documents of Exs.D1 to D36.
65. The dispute before the Court is with regard to
appreciation of evidence by Trial Court as well as the appellate
Court in order to exercise the jurisdiction of second appeal. I
have already pointed out that the Trial Court comes to the
conclusion that Ex.D1 was not proved but this Court while
considering the substantial question of law No.(ii) allowed the I.A
for sending the document for handwriting expert and opinion is
also received wherein the handwriting expert says that the
signature found in Ex.D1 and Ex.D37 are one and the same and
hence it is clear that the signature available in Ex.D1 -Will is
belongs to the executant. Now, only question before this Court is
whether the said executant had executed the Will -Ex.D1 with
sound state of mind and any reasons are assigned in the Will in
favour of the defendant No.1 and whether it comes in the
purview of suspicious circumstances. This Court would like to
rely upon recent judgment of the Apex Court relied upon by the
appellant's counsel MEENA PRADHAN AND OTHERS VS.
KAMLA PRADHAN AND ANOTHER referred supra and also
extracted the observation made in paragraph N.10 which does
not requires mathematical accuracy but the test of satisfaction of
the prudent mind has to be applied fulfill all the formalities
required under section 63 that testator shall sign or affixes his
mark to the Will or it shall be signed by some other person by
his direction and also mandatory to attest the document and
only in the presence of the executant witnesses must have seen
the testator signature. It is also important to note that attesting
witnesses speak not only about the testator signature but also
each of the witnesses had signed the Will in the presence of the
testator and if one attesting witness can prove the execution of
the Will, the examination of other attesting witnesses can be
dispensed with. It is also important to note that in paragraph
No.10(ii) in the judgment also held with regard to if there are
any circumstances giving rise to doubt then it becomes duty of
the propounder to dispense such suspicious circumstances. The
suspicious circumstances must be real, germane and valid and
not merely the fantasy of the doubting mind. Whether a
particular future would qualify as suspicious would depend on
the facts and circumstances of each case. It is also observed that
any circumstances raising suspicion legitimate in nature would
qualify as suspicious circumstances. For example, a shaky
signature, a feeble mind, a unfair and unjust disposition of the
property, the propounder himself taking leading part in making
of the Will. Hence, this Court has to look into any such
circumstances warranted in the case on hand.
66. Before considering the said factual aspects it is
necessary to refer the document of Ex.D1 and the same is
registered document. The reason assigned by the testator is that
he married and his wife left him long back about 45 years ago
and not having any issues from the said wedlock and also the
beneficiary under the Will is his mother's sister's daughter and
he fostered her as his daughter and also performed the marriage
with one Sri.M.J.Kamaiah of Matanahalli and she has taken care
of his life and also having belief that she would take care of him
future also and hence executed the Will and in the Will the
details of property is mentioned which he was having during his
life time and signature of the executant is marked as Ex.D1(a)
and Ex.D1(b) and also the witnesses signature also got marked
through the witnesses who have been examined that is DW2 and
DW3 and so also the scribe signature is identified by DW4 since
he was no more.
67. It is also important to note that document of Ex.D37
is also got marked through defendant No.2 who claims that one
of the property was sold to the purchaser in the year 1960 itself
that too by the executant and Trial Court also accepted the
contention of defendant No.2 that there was a sale deed in
respect of Sy.No.76/1 and Sy.No.76/2 and excluded while
granting the decree in favour of the plaintiff the said property. It
is also not in dispute that the sale deed was executed in the
year 1960 in terms of the Ex.D37 and the same is also not
seriously disputed by the respondent and Trial Court also
accepted the same. This Court sent the document of Ex.D1 and
Ex.D37 and signature of executant is also marked as Ex.D37(a)
in the said document and both the signatures are compared by
the expert and expert has given the scientific report that both
the signatures are one and the same. Hence it is clear that the
document Ex.D1 contains the signature of the deceased
executant and now Court has to consider whether the document
came in a suspicious circumstances as held by the Apex Court in
the judgment referred supra. Any circumstances raising
suspicion legitimate in nature would qualify as a suspicious
circumstance for example, a shaky signature and signature in
between 1960 as well as 1975 is analyzed by the scientific
expert and comes to the conclusion that both signatures are one
and the same and also with regard to the feeble mind is
concerned, the very witnesses of plaintiff PW2 and PW3
categorically admitted that till the death he was having sound
state of mind and those witnesses are examined by the plaintiff.
68. It is also important to note that Apex Court also
observed that unfair and unjust disposition of property but no
doubt all the properties are given in favour of the defendant
No.1 but, reason was assigned in the Will itself that his wife left
him 45 years ago and also categorically says that he was not
having any issues in the said wedlock, but plaintiff claims that
she is the daughter of the executant, but no documentary
evidence is placed before the Trial Court to prove that she is the
daughter of the executant but Trial Court accepted the oral
evidence particularly PW2 to PW4 and evidence of DW5 and DW6
who have deposed that she is the daughter.
69. It is also important to note that when the executant
himself having sound state of mind as admitted by the plaintiff's
witnesses PW2 and PW3, no question of feeble mind and
regarding unfair and unjust disposition of property is concerned,
the very executant himself stated in the document in the year
1975 itself that he was not having any issues and hence the
property was bequeathed in favour of defendant No.1 who had
taken care of the executant. It is also important to note that if
propounder himself taking leading part in making of the Will,
then it will be one of the circumstances, but no such material is
found with regard to taking leading part in getting the property,
but counsel appearing for the respondent would vehemently
contend that a sentence is mentioned that the Will document will
come into force after his death and the same is an insertion and
having compared the writings found, the writings of all the
contents are in the same hand writing, but the signature of the
executant found beside the sentence, that will not create any
doubt since the hand writing expert given opinion that signature
belongs to the executant and also witnesses speaks about the
execution of the Will-Ex.D1 that is spoken by DW2 and DW3.
70. The Apex Court also made it clear that each
witnesses must say that executant had signed the document in
their presence and also they signed the document on the
direction of executant and in the evidence of DW2 and DW3,
both have categorically deposed before the Court that the said
Kamaiah out of natural love and affection executed a registered
Will on 01.01.1975 in favour of the defendant bequeathing the
suit property as he was care and custody of her. It is also stated
that during the life time of Kamaiah the suit properties were
managed by both himself and the defendant and was in their
peaceful possession and enjoyment, subsequent to the death of
Kamaiah, the testator, the defendant continued to be in
possession of the same. The plaintiff is a stranger to the suit
schedule property.
71. It is also important to note that DW2 categorically
says that Kamaiah instructed M.Lingappa to prepare the
document and accordingly the document was prepared since
Lingappa was his scribe and also categorically says that he
himself Venkoba Rao, Marikamaiah, Narasimmaiah have attested
the same and specifically deposed that the testator Kamaiah had
put his signature on that document that is registered Will as
described above. In the cross-examination also he admits that
defendant is a close relative through his wife, but denied the
suggestion that the plaintiff was the daughter and merely
because he is the relative, his evidence cannot be disbelieved.
He categorically says that the deceased Kamaiah was told him
that his wife left him. He categorically says that stamp was
purchased from one Venkoba Rao on the same day. The
document Ex.D1-Will was written by Matanahalli Lingappa at the
instance of the deceased Kamaiah. The scribe of the Ex.D1 -Will
took 2-3 hours for writing. The document Ex.D1 was registered
in the office of the Registrar on the same day.
72. The other witness DW3 also categorically says that
defendant No.1 passed away and executant performed the
marriage of 1st defendant. The witness re-iterates the evidence
of DW2. In the cross-examination also he says they left Sira
from Kuntegowdanahalli village at about 9.00 am., and all
persons were there and stamp papers were purchased at about
10.30 a.m., and draft was prepared and admits the affixing of
signature on Ex.D1 and also says that one Narasimmaiah was
present, but Narasimmaiah says that when he had signed the
document, he has not affixed his signature to the Ex.D1 in his
presence, but the fact is that executant signed the document in
the presence of D2 and D3 is not in dispute.
73. It is also important to note that the Court has to take
note of the reasons assigned by the Trial Court in not believing
the document Ex.D1. Having perused the reasoning the Trial
Court comes to the conclusion that having perused the material
Kamaiah must have some reason to exclude plaintiff succeed his
property because she is the only daughter and no such reasons
is mentioned in the Will. This observation is contrary to the
document. The executant Kamaiah himself has given the reasons
in the Will that he married long back and his wife left her 45
years ago and not having any issues. When such recital is made
in the Will itself that not having any issues, question of she is the
daughter does not arise and also no such reasons is mentioned
in the Will is also a contrary to the document Ex.D1 and he has
mentioned the reason for executing the Will and even specifically
mentioned that defendant No.1 taken care of him throughout
and hence the said finding of Trial Court is erroneous.
74. The other finding that it is burden of defendant No.1
to establish that Kamaiah has executed a Will but Trial Court
comes to the conclusion that DW2 is closely related to the 1st
defendant through his wife and not accepted the evidence of
DW2. The other reason is given that moreover Kamaiah has got
sufficient property in his hand and he was very popular in his
village and DW2 admitted this fact. Under these circumstances
Kamaiah was not having any need or necessity to call DW2 as
witness to the Will. This observation is also erroneous, merely
because he was a relative and he is not debarred from attesting
the document and only Court has to take note of whether the
Will was executed by the testator and the same has been
attested by the testator in the presence of witness and comes to
the conclusion that he would not send any message to DW2 to
become attestor to the Will and the same is also against the
material on record.
75. The other reason given in paragraph No.45 of the
Trial Court judgment there is a serious dispute about the
execution of the Will by deceased Kamaiah. The defendant No.1
could produce some admitted document containing the signature
of Kamaiah to compare it with disputed signature on the Will.
This observation is also erroneous. When the document of Ex.D1
was before the Court and also Ex.D37 admitted was also before
the Court, the Trial Court ought to have compared the same
along with admitted document under Section 73 of the Evidence
Act and not exercised its discretion. Though reference was made
that however defendant No.2 has produced sale deed executed
by Kamaiah as per Ex.D1-Will and sale deed contains signature
and L.T.M of deceased Kamaiah defendant could take
commission and sent the same admitted to the disputed
signature and L.T.M to expert but no such effort was made but
an attempt is made before the First Appellate Court to send the
document in view of this observation and application was filed
and the same was rejected. This Court while answering the 2nd
substantial question of law, comes to the conclusion that First
Appellate Court committed an error and this Court sent the
document to the hand writing expert and now handwriting
expert is very clear that signature available in Ex.D1 and Ex.D37
is one and the same and hence, the same is proved and also the
Trial Court comes to the conclusion that DW3 in the cross-
examination admits that he is facing the criminal trial for 2 or 3
times and he was suspended from service twice and on that
ground disbelieved the evidence of DW3. The Trial Court comes
to the conclusion that PW1 to PW4 have denied the execution of
the Will and their evidence is not material since they are not the
attesting witness to the document, but Trial Court comes to the
conclusion that when plaintiff that is daughter of Kamaiah was
alive, there was no occasion for Kamaiah to execute Will in favor
of 1st defendant, but Trial Court coming to such a conclusion not
discussed anything about the averment made in document Ex.D1
itself that he was not having any issues and given more
importance to the oral evidence than documentary evidence
which came into existence in the year 1975 itself and also the
fact that he lived for about 13 years after execution of such Will
and the Trial Court giving the reasons that same is not proved
and there are suspicious circumstances against the material on
record and the judgment which has been referred by the
appellant's counsel delivered recently by the Apex Court is very
clear only in suspicious circumstances will arise if any shaky
signature, a feeble mind, an unfair and unjust disposition of
property and propounder himself taking a leading part and no
such material found in order to doubt the execution of the Will.
The Trial Court committed an error in coming to such a
conclusion that Will has not been proved inspite of witnesses
have been examined and also the document is a registered
document and particularly PW2 and PW3 have admitted that
throughout the executant was having sound state of mind. It is
not the case of the plaintiff that executant was not having sound
state of mind at any point of time. When the executant is having
sound State of mind and document was registered and he
attested the Will in the presence of DW2 and DW3. The Trial
Court doubted the same, the very judgment of the Apex Court is
very clear that suspicious circumstances must be real, germane
and valid and not merely the fantasy of doubting mind. In the
case on hand, the way in which evidence is appreciated by the
Trial Court is nothing but fantasy of the doubting mind by the
Trial Court in the absence of material on record. When the
reason has been assigned in the Will itself for disposing the
property belongs to the executant in favour of the defendant
No.1 and details are given in the Will itself and the said Will also
runs about 4 pages even witnesses have also deposed regarding
the same that this document came into existence in the year
1975 and compliance under Section 63 is also that the executant
must affix his signature in the presence of the Will and so also
the attesting witnesses must sign that document on the direction
of the executant and the same is found before the Court and
merely in one sentence the witness Narasimmaiah has not
signed in the presence of other witness that cannot be magnified
while giving the reasons and Trial Court has magnified the same.
76. The First Appellate Court also while appreciating the
material on record in paragraph No.22 made an observation that
evidence on record that the plaintiffs in the Court below all along
disputed the factum and validity of the Will, deed in question
alleged to have been executed by Kamaiah in favour of the
deceased defendant No.1. But, fails to take note of the reasons
given by the Trial Court which I have stated above that Trial
Court comes to the conclusion that no reasons are assigned in
the Will but on perusal of the document Ex.D1 is very clear
reasons are given for executing the Will and also even stated
that not having any issues in the said marriage and an
observation is made with regard to non appointment of expert
and discussed the same, but the very fact that the First
Appellate Court rejected the application when the same was filed
before the First Appellate Court for sending the document for
scientific evaluation is not in dispute. This Court comes to the
conclusion that rejection of application for appointment of
commissioner is erroneous and ordered to send the same and
opinion is received. No doubt the report is not mandatory and
the same is directory but coupled with evidence available on
record and reasons assigned by the Trial Court and First
Appellate Court is erroneous and First Appellate Court comes to
the conclusion that Trial Court has rightly appreciated both oral
and documentary evidence placed on record but even not looked
into the recital of document Ex.D1 while considering the appeal
whether reasons have been assigned in the Will to execute the
same and committed an error. Hence, the very appreciation of
evidence on the part of the Trial Court as well as First Appellate
Court is nothing but perversity and not looked into the recital of
the Will- Ex.D1. The Will was propounded in the year 1992 itself
when notice was given for partition. But, suit was filed after 4
years, but claims that she was in possession of property, then
what made her to seek for partition if she is cultivating the land
after the death of the testator. It is also important to note that in
the plaint it is pleaded that she was dispossessed two years ago
and no date of dispossession was given as well as no complaint
was given for dispossession. Nothing is placed on record for
dispossession before the Trail Court. The theory of dispossession
remains only as pleading but the same is not proved. Even if
dispossessed suit ought to have been filed under section 6 of
Specific Relief Act and not to wait for two years is pleaded.
These materials goes against plaintiff, but both courts committed
an error in coming to the conclusion that Ex.D1 was not proved.
The judgment relied upon by the learned counsel for the
respondent that in the second appeal evidence cannot not be
re-appreciated cannot be accepted for the reason that there is
perversity in the finding. Hence, substantial question of law
No.(i) is answered as 'affirmative'.
77. Now, the substantial question of law No.(iii) is with
regard to the proving of relationship between the plaintiff and
the executant. The Trial Court while considering the evidence on
record mainly relies upon the oral evidence of the plaintiff and
admittedly no document is placed before the Court that the
plaintiff is the daughter of executant Kamaiah. However,
believed the evidence of PW2 to PW4 that they have spoken
about that she is the daughter of Kamaiah and also consider the
evidence of DW5 and DW6. It has to be noted that DW5 and
DW6 have been examined on behalf of defendant No.2 and they
are not the witnesses of defendant No.1 and merely DW5 and
DW6 who have been examined on behalf of defendant No.2
gives an answer that the plaintiff is the daughter of Kamaiah
that is not an admission on the part of defendant No.1. The Trial
Court while answering issue No.1 comes to the conclusion that
oral evidence proves that she is the daughter but no
circumstances is placed before the Court to believe the same.
The plaintiff relies upon the document Ex.P29 and Ex.P30 which
are the voter list and the same is evident in respect of the
executant Kamaiah and also the Puttamma who is the wife of
Kamaiah and no dispute with regard to the said fact and voter
list of plaintiff is not there along with the executant Kamaiah and
the same cannot be believed.
78. The counsel appearing for the appellant also relied
upon the judgment with regard to the voter list cannot be
believed which is referred supra. It is also important to note that
the counsel appearing for the respondent also relied upon the
several judgments with regard to re-appreciation of evidence in
the second appeal. No dispute with regard to the fact that in the
second appeal, the evidence cannot be looked into and only
Court has to look into the substantial question of law but, it is
also settled law that if the evidence is not properly appreciated
and any perversity in appreciating the material on record, the
Court can look into material available on record. The Trial Court
no doubt while answering issue No.1 relied upon the judgment
with regard to Section 50 reported in AIR 1973 Panjab and
Haryana 2013, the conduct of a person wholly unconnected
with the family of having no special means of knowledge about
the alleged relationship will be absolutely relevant and not
lending any assurance in determining the relationship and
paragraph No.10 also extracted opinion of relative is very much
important to prove the relationship between the parties. No
doubt, the PW2 to PW4 deposes with regard to the relationship
and also considered the evidence of DW5 and DW6 but the fact
that oral evidence excludes the documentary evidence has not
been discussed while answering the issue. The Trial Court never
touched upon the recitals of registered document of Ex.D1 that
is the executant executed the Will wherein categorically stated
that he was not having any issues in the said wedlock and his
wife left long back about 45 years and that documentary
evidence excludes the oral evidences of witnesses and even not
referred the document Ex.D1 while answering the issue No.1 in
coming to the conclusion that plaintiff is the daughter of
executant and when the executant himself in the year 1975 itself
stated that he was not having any issues but considered the
evidence of PW2 to PW4, DW5 and DW6. I have already pointed
out that DW5 and DW6 are not the witnesses of defendant No.1
and PW2 to PW4 though they are aged about 60 years and 70
years as contended by the respondent's counsel, the same is not
the vital part. The very executant himself very long back while
executing and registering the document on 01.01.1975 itself
declared that he was not having issues and nothing has been
discussed while coming to such a conclusion that plaintiff is the
daughter of Kamaiah referring Ex.D1 by both the Courts.
79. The counsel also relied upon the several judgment
with regard to Order 41 Rule 28 of CPC is concerned which have
been referred above wherein also the Apex Court held that in
AIR 2007 SC 2612 if any additional evidence has been
considered then Court has to take note of Order 41 Rule 28 of
CPC and also examined the witnesses proving of the facts and
First Appellate Court intends to allow the application then it has
to allow the application and permit the concerned parties to lead
additional evidence and defer the decision on merits. No dispute
in the principles and Appellate Court committed an error in
answering point No.1 but not complied the same. The judgment
which have been relied upon by the counsel for the appellant in
respect of Section 50, this Court in the judgment AIR 2022
KAR held that no oral evidence to prove adoption in the absence
of proof of adoption, refusal to grant declaration reliance placed
upon the voter list cannot also be of any consequence, since an
entry in the voter list that he was the son of Sadanandaiah
cannot establish the adoption, but in the case on hand voter list
also does not disclose anything about the plaintiff is the
daughter and voter list only in respect of the executant as well
as his wife and judgment reported 1995 (1) KAR LJ 663 also
held that with regard to the paternity is concerned and paternity
of a person cannot be determined on the basis of mere entries in
the extract that is birth and death extract document to be used
only to prove the date of birth or a death of a particular person
and party concerned to lead some other evidence to prove that a
particular person was born to a particular man when that point is
in issue in the case and no such material and evidence has been
placed except relying upon the oral evidence of PW2 to PW4.
Regarding Section 50 also concerned, the judgment of this Court
1982(2) KAR L J 485 is very clear that Section 50 does not
make evidence of mere general reputation admissible as proof of
relationship and the conduct must be of the person who fulfills
the essential conditions of section 50. Regarding relationship
opinion evidence as to the relevancy is concerned also discussed
in the judgment 1966 (1) MYS L J 235 particularly in page
Nos.238, 240 and 242 wherein considered the scope of section
50 and nature of proof that would be necessary. No importance
can be attached to the any entry unless material is placed and
applicable to the Section 50 is indicated in the judgment of AIR
1959 Supreme Court 941 under Section 50 when the Court
has to form an opinion as to the relationship of one person to
another the opinion expressed by conduct as to the existence of
such relationship of any person who has special means of
knowledge on the subject of the relationship is a relevant fact
and discussed the essential requirements of Section 50. In the
case on hand, the very executant himself has declared that he
was not having any issues but believe the oral evidence of PW1
to PW4, DW5 and DW6 and documentary evidence was
excluded. I have already pointed out that documentary evidence
at Ex.D1 is not discussed while coming to such a conclusion and
hence, both the Courts have committed an error in accepting the
case of plaintiff that she is the daughter of Kamaiah as against
the documentary evidence of Ex.D1 and reasons assigned while
executing the Will also the same has not been considered. The
very contention of respondent's counsel that disinheriting the
daughter is one of the suspicious circumstances also cannot be
accepted for the reason that no material is placed that she is the
daughter when the very executant had made declared in the
documentary evidence itself that he was not having any
daughter and reason assigned for executing the Will, no
suspicious circumstances in view of the discussions made above.
Hence, I answer the substantial question of law No.(iii) as
affirmative that both the Courts have committed an error in
coming to the conclusion that plaintiff established that she is a
daughter of Kamaiah and committed an error in granting the
relief and hence both the orders requires to be set aside.
80. In view of the discussions made above, I pass the
following:
ORDER
i) The Second Appeal is allowed.
ii) The impugned judgment of the Trial Court and
the First Appellate Court are set-aside.
Consequently, the suit filed by the plaintiff is
dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST/SN/RHS
