Karnataka High Court
Sri M H Anjinappa vs Late Doddakka on 6 January, 2025
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
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RSA No. 1322 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.1322 OF 2012 (RES)
BETWEEN:
1. SRI M H ANJINAPPA,
S/O LATE M H JUNJAPPA,
SINCE DEAD BY LRs
1(a) SMT. SHARADAMMA,
AGED ABOUT 69 YEARS,
W/O LATE M.H. ANJINAPPA @ ANJANEYA M.H.,
R/A SRI SATHYANARAYANA NILAYA,
MAIN ROAD, MUNICIPAL COLONY,
KELAGOTE, CHITRADURGA - 577 501.
1(b) SRI YUVARAJA M.A.,
AGED ABOUT 49 YEARS,
S/O LATE M.H. ANJINAPPA @ ANJANEYA M.H.,
R/A SRI SATHYANARAYANA NILAYA,
MAIN ROAD, MUNICIPAL COLONY,
KELAGOTE, CHITRADURGA - 577 501.
1(c) SMT. BHAGYAMMA M.A.,
AGED ABOUT 45 YEARS,
S/O LATE M.H. ANJINAPPA @ ANJANEYA M.H.,
R/A SRI SATHYANARAYANA NILAYA,
MAIN ROAD, MUNICIPAL COLONY,
KELAGOTE, CHITRADURGA - 577 501.
1(d) SMT. MANJULA M.A.,
AGED ABOUT 41 YEARS,
S/O LATE M.H. ANJINAPPA @ ANJANEYA M.H.,
W/O RAGHAVENDRA R.,
R/A SRI SATHYANARAYANA NILAYA,
MAIN ROAD, MUNICIPAL COLONY,
KELAGOTE, CHITRADURGA - 577 501.
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RSA No. 1322 of 2012
2. SHRI M.H. KRISHNAMURTHY,
S/O LATE M.H. JUNJAPPA,
AGED ABOUT 52 YEARS,
R/AT KELAGOTE, CHITRADURGA - 577 501.
...APPELLANTS
[BY SRI K.K. VASANTH, ADVOCATE (PH)]
AND:
LATE DODDAKKA,
REP BY LEGAL REPRESENTATIVES
1. SMT. GAYATHRAMMA,
W/O SHRI RANGASWAMY,
AGED BOUT 52 YEARS,
R/AT MADAKARIPURA,
CHITRADURGA TALUK - 577 501.
2. SHRI M.H. HOSURAPPA,
S/O LATE M H JUNJAPPA,
SINCE DECEASED BY HIS LRs
2(a) SMT. KUMUDA,
AGED ABOUT 44 YEARS,
D/O LATE M.H. HOSURAPPA,
W/O SRI THARANATH,
R/A NO.2453, 10TH MAIN,
D BLOCK, 2ND STAGE, RAJAJINAGAR,
BENGALURU - 560 010.
2(b) SMT. NIRMALA,
AGED ABOUT 42 YEARS,
D/O LATE M.H. HOSURAPPA,
W/O SRI ASHWIN KUMAR,
R/A L-140, 3RD STAGE,
OPP. RMP QUARTERS,
KUVEMPUNAGAR,
MYSORE - 570 023.
2(c) SMT. PUSHPA,
AGED ABOUT 39 YEARS,
D/O LATE M.H. HOSURAPPA,
W/O SRI MANJUNATH,
R/A NO.79, T.G. LAYOUT,
NEAR RAGAVENDRA SWAMY TEMPLE,
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RSA No. 1322 of 2012
ITTMADU, BSK - 3RD STAGE,
BENGALURU - 560 085.
3. SMT. LAKKAMMA,
SINCE DEAD REP BY
3(a) SMT. GEETHAMMA,
W/O SRI NARASIMHAPPA,
AGED ABOUT 47 YEARS,
KALAHALLI VILLAGE,
CHITRADURGA TALUK - 577 501.
3(b) SRI NARASIMHAPPA ,
S/O SHRI HANUMAPPA ,
SINCE DECEASED BY HIS LRs
3(b)(i) SMT. SUNDARAMMA,
AGED ABOUT 45 YEARS,
W/O LATE NARASIMHA MURTHY,
3(b)(ii) SRI NARASIMHA SWAMY,
AGED ABOUT 24 YEARS,
S/O LATE NARASIMHA MURTHY,
3(c)(iii) SMT. SHIVAMMA,
AGED ABOUT 22 YEARS,
D/O LATE NARASIMHA MURTHY AND
W/O VENKATESHAPPA,
3(d)(iv) SMT. MAMATHA,
AGED ABOUT 20 YEARS,
D/O LATE NARASIMHA MURTHY,
THE RESPONDENTS NO.3(b)(i) TO 3(b)(iv)
ARE R/A C/O HOSAMNI NARASIMHAPPA,
MADAKARIPURA VILLAGE AND POST,
D.S. HALLI (VIA) CHITRADURGA TALUK
AND DISTRICT - 577 501.
4. SMT.HOSURAMMA ,
W/O SHRI S N NARASIMHANNA,
AGED ABOUT 52 YEARS,
R/AT MADAKARIPURA,
CHITRADURGA TALUK - 577 501.
5. SHRI M.H. DASAPPA ,
S/O LATE M.H. JUNJAPPA,
SINCE DECEASED BY HIS LRs
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RSA No. 1322 of 2012
5(a) SMT.HAMPAMMA,
AGED ABOUT 75 YEARS,
W/O LATE M.H.DASAPPA,
R/A MADAKARIPURA VIA D.S. HALLI,
MADAKARIPURA POST,
CHITRADURGA TALUK & DISTRICT-577 501.
5(b) SMT.NAGARATHNA,
AGED ABOUT 50 YEARS,
D/O LATE M.H.DASAPPA AND
W/O NAGARAJ, R/A GOLLAHALLI,
YARABALLI POST,
HIRIYUR TALUK, CHITRADURGA
TALUK AND DISTRICT - 577 501.
5(c) SRI M.D. PRAKASH,
AGED ABOUT 48 YEARS,
S/O LATE M.H.DASAPPA,
R/A SANNADASAPPA LAYOUT,
NEAR VINAYAKA KALYANAMANTAPA,
CHALLAKERE ROAD,
CHITRADURGA TALUK
& DISTRICT - 577 501.
5(d) SRI M.D.NARASIMHA MURTHY,
AGED ABOUT 46 YEARS,
S/O LATE M.H.DASAPPA,
R/A MADAKARIPURA VIA D.S.HALLI,
CHITRADURGA TQ & DISTRICT-577 501.
5(e) SRI M.D. VIVEKANANDA,
AGED ABOUT 44 YEARS,
S/O LATE M.H.DASAPPA,
R/A MADAKARIPURA VIA D.S.HALLI,
CHITRADURGA TQ & DISTRICT-577 501.
5(f) SRI M.D.NAREDNRA BABU,
AGED ABOUT 42 YEARS,
S/O LATE M.H.DASAPPA,
R/A MADAKARIPURA VIA D.S.HALLI,
CHITRADURGA TQ & DISTRICT-577 501.
5(g) M.D. LOHITHESHA,
AGED ABOUT 40 YEARS,
S/O LATE M.H.DASAPPA,
R/A OPP. ANNAPOORNESHWARI TEMPLE,
MARUTHI NILAYA, KARNATAKA GOVT. FAIR
PRICE DEPOT, MAHILA VIVIDHODESHA
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RSA No. 1322 of 2012
SAHAKARI SANGHA (R),
CHITRADURGA TALUK & DISTRICT - 577 501.
6. SMT.LAKSHMAVVA ,
W/O SHRI NARASIMHAPPA ,
AGED ABOUT 58 YEARS,
UPPARIGENAHALLI, HOLALKERE TALUK,
CHITRADURGA - 577 501.
7. SMT.UMADEVI,
W/O NARAYANAPPA, MAJOR,
2ND MAIN, MUNICIPAL COLONY,
CHITRADURGA - 577 501.
8. SMT.ONKARAMMA,
W/O LATE NARASIMHAPPA,
MAJOR, LIBRARIAN,
DHARAMPURA HIGH SCHOOL,
R/AT DHARAMPURA, HIRIYUR TALUK.
PIN CODE - 577 501.
...RESPONDENTS
[BY SRI S. BASAVARAJ, SR. COUNSEL APPEARING FOR
SRI GOUTHAM A.R., ADVOCATE FOR R1 TO R6, R7 & R8 ARE
SERVED]
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD 17.4.2012 PASSED IN R.A.NO.39/2010 ON THE FILE OF
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT),
CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DTD 25.2.2010 PASSED IN
OS.NO.205/1998 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.)
& C.J.M., CHITRADURGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.11.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VC FROM DHARWAD BENCH, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 1322 of 2012
CAV JUDGMENT
Challenging judgment and decree dated 17.04.2012
passed by Addl. Sessions Judge (Fast Track Court),
Chitradurga, in R.A.no.39/2010, this appeal is filed.
2. Brief facts are that appellants were defendants no.1
and 2 in O.S.no.205/1998 filed by respondents/plaintiffs for
declaration of Will dated 09.03.1981 registered on 18.03.1981
and executed by their father - MH Junjappa in respect of suit
properties as null and void; to declare plaintiffs are entitled for
1/10th share of suit properties; for partition and separate
possession of plaintiffs' 1/10th share in eastern portion
measuring 01 Acre 91/2 guntas out of total extent of 02 Acres
19 guntas in land bearing Sy.no.5/1 and eastern portion
measuring 01 Acre 31/2 guntas out of 02 Acres 07 guntas in
Sy.no.5/2, both situated at Kelagote village, Kasaba Hobli,
Chitradurga Taluk ('suit properties' for short); to enter name
of plaintiffs in revenue records in respect of their 1/10th share
in suit properties and to appoint Commissioner to divide share
of plaintiffs by metes and bounds etc.
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3. In plaint, it was stated, plaintiffs and defendants
were children of MH Junjappa. In partition between his
brothers, he received several movables/immovable properties
yielding substantial income, with which he purchased other
properties in 1962. In Oral partition between Junjappa and his
sons, suit properties were given as share for maintenance of
Junjappa and his wife Hosuramma. Even properties in said
share yielded very good income providing for their needs.
4. Hanumakka died on 23.12.1981. At that time,
Junjappa was residing with defendants. And when
Omkaramma, his daughter became widow, she also joined
Junjappa and resided with defendants. Due to death of his wife
and son-in-law, Junjappa suffered depression and ill-health. By
restricting Omkaramma from prohibiting and without properly
taking care of Junjappa's health, defendants had made
Junjappa their puppet. With ill-intention to knock off properties,
defendants fraudulently got him to execute Will dated
09.03.1981 registered on 18.03.1981.
5. Plaintiffs also stated that Junjappa in frustration,
went to Madakaripura on 05.10.1982 for performing pooja.
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There, he confided with elders and well-wishers about fraud
played by defendants and intended to nullify same. He also
intended to fulfill wishes of his wife that all his children should
get equal share in his properties. Therefore, he executed Will
dated 06.10.1982, cancelling earlier Will dated 19.03.1981. But
for various reasons said Will was not registered. Therefore,
after death of Junjappa on 25.03.1984, all his children became
entitled for equal share as per Will dated 06.10.1982. But as
defendants had got their names entered in revenue records and
were in hurry to sell away properties worth 7 to 8 lakhs of
rupees for mere 2 to 2½ lakhs of rupees, contrary to
subsequent Will dated 06.10.1982 and right of plaintiffs for
1/10th share each. Hence, suit was filed.
6. Upon appearance, defendants no.1 and 2 filed
written statement admitting relationship between plaintiffs and
defendants and oral partition in year 1969 and stated that said
partition was confirmed by registration partition deed dated
04.06.1979, wherein suit properties were allotted to Junjappa.
They stated that after partition, parents were residing with
defendants no.1 and 2.
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7. They also stated that suit properties were garden
lands irrigated by Well and pump-set. After partition, there was
depletion of water in Well due to borewells nearby. After death
of Junjappa, when they could not make alternative
arrangement, garden withered away. They admitted
Hanumakka, their mother died on 25.01.1985 and later
Omkaramma their sister lost her husband and began residing
with them. They however stated that she was employed at
Dharmapura and was residing there since 8 years. They stated
Junjappa was residing with them happily and denied he was a
puppet. They stated that on 09.03.1981, Junjappa executed a
Will bequeathing suit properties in their favour while he was in
sound disposing state of mind. And further that Will was duly
attested and registered on 18.03.1981. They claim that it was
last Will and testament and same was not vitiated by fraud or
inducement as alleged. They denied entire assertion about
Junjappa going to Medikerepura, seeking to elders and
execution of another Will on 06.10.1982. They alleged said Will
was forged and concocted. They claimed to have become
owners of suit properties under Will dated 09.03.1981, after
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death of Junjappa. They alleged suit was bad for non-joinder of
Omkaramma.
8. Defendants no.4 and 5 filed separate written
statements supporting defendants no.1 and 2, while defendant
no.3 was placed ex-parte.
9. Based on pleadings, trial Court framed following
issues and additional issues:
1) Whether plaintiffs prove that their father
Junjappa executed a will in their favour on
6/10/1982 and bequeathed the suit properties
in their favour?
2) Whether the plaintiffs further prove that the
will dated 6/10/1982 in their favour has to
effect of cancelling the previous will dated
9/3/1981 in favour of defendants-1 and 2?
3) Whether defendants-1 and 2 prove that the
will dated 6/10/1982 is not a genuine will and
that is forged?
4) Whether plaintiffs prove that they are entitled
for 1/10th share in the suit properties and for
partition and separate possession by metes
and bounds?
5) Whether defendants-4 and 5 prove that they
are not necessary parties to the suit?
6) Whether defendants-4 and 5 prove that suit is
barred by limitation?
7) To What order or decree the parties are
entitled to?
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Additional Issue dated 29.07.2002
Whether the suit is properly valued and
court fee paid is sufficient?
Additional Issue dated 15.07.2009
Whether suit is bad for non-joinder of
necessary parties?
Additional Issue dated 13.10.2009
Whether the defendants-1 and 2 prove
that the deceases Junjappa during his
lifetime has executed will in their favour
jointly on 09.03.1981 with respect to suit
schedule property and the same is duly
registered on 18.03.1981?
10. To establish their case, plaintiff no.4 and four
others were examined as PWs.1 to 5. Exhibits P1 to P20 were
marked. On other hand, defendant no.1 and two others were
examined as DWs.1 to 3 and Exhibits D1 to D11 were marked.
11. On consideration, trial Court answered issues no.1,
2, 4, 5 and addl. issue dated 15.07.2009 in negative; issues
no.3, 6, addl. issues dated 29.07.2022 and 13.10.2009 in
affirmative. It answered issue no.7 by dismissing suit.
Aggrieved, plaintiffs filed R.A.no.39/2010 on various grounds.
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12. Based on contentions urged, first appellate Court
framed following points for its consideration.
1) Do plaintiffs that prove their father MH
Junjappa executed the will on 6-10-1982
bequeathing the suit schedule properties in
their favour to effect of canceling the previous
will dtd.9-3-1981 which is registered on 18-3-
1981 in favour of defendant no.1 and 2?
2) Do defendants 1 and 2 prove that the will
dtd.6-10-1982 is not genuine and it is forged
one?
3) Do plaintiffs prove that they are entitle for
1/10th share in the suit schedule properties by
means of partition and separate possession
by metes and bounds?
4) Whether further defendant no.4 and 5 proves
that the suit is barred by law of limitation?
5) Do defendants no.1 and 2 proves that the
deceased M.H.Junjappa has executed a will
dtd.9-3-1981 in their favour when he was in
sound disposing state of mind without
knowing the dire consequences of execution
of the will bequeathing the suit schedule
property in their favour which was duly
registered on 18-3-1981?
6) Whether impugned judgment passed by the
learned trial court is arbitrary, perverse, and
capricious and opposed to law?
7) Is there any sufficient reason to interfere in
the order of learned trial court?
8) What decree or order?
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13. On consideration, it answered points no.1, 2, 4 and
5 in negative; points no.6 and 7 in affirmative and points no.3
and 8 by allowing appeal, setting aside judgment and decree
passed by trial Court and holding each of plaintiffs no.1, 3, 4
and defendants no.3 to 5 entitled for 1/50th share; and each of
plaintiffs no.2, 5 and defendants no.1 and 2 entitled for 11/50th
share in suit properties etc.
14. Sri K.K. Vasanth, learned counsel for defendants
no.1 and 2 submitted this appeal was against divergent findings
in suit for declaration and partition. It was submitted, Sri MH
Junjappa died on 25.03.1984 leaving behind his four sons and
six daughters. His wife Hanumakka predeceased him on
23.01.1981. It was submitted, plaintiffs filed suit for
cancellation of registered Will dated 09.03.1981 executed by
Junjappa bequeathing suit properties to defendants no.1 and 2
and for declaration of their 1/10th share each in suit properties
as per Will dated 06.10.1982 stated to have been executed by
Junjappa.
15. To establish their case, plaintiff no.4 viz.,
Smt.Hosuramma was examined as PW-1. She got marked
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Record of Right ('RoR') as Ex.P1, IR Extract as Exs.P2 and P3,
Kethavaru Extract as Exs.P4 and P5, copy of RTC as Exs.P6 and
P7, Photographs as Exs.P8 to P15, Negatives of photos to show
Coconut and Arecanut trees grown in schedule property as
Exs.P16 and P17, Will dated 06.10.1982 as Ex.P18 and
signature of testator - father of PW-1 as Exs.P18 (a) & P18 (b).
While reiterating plaint averments, she specifically stated that
Junjappa executed Ex.P18 - Will, at about 12 O'clock in her
house at Medikerepura, in presence of attesting witnesses -
Mallanna, Govindappa, Mariswamy and Narasappa and scribe
Thippeswamy. And at that time, Junjappa was hale and healthy
and in sound disposing state of mind. In cross-examination,
she admitted Junjappa died within six months of Ex.P18 - Will.
She admitted it was executed in presence of all sons and
daughters. In further cross-examination, she admitted
Junjappa was Member of City Municipal Council, Chitradurga
and that he died due to throat cancer while taking treatment at
Cancer Hospital, Bangalore. She also admitted, he suffered for
three years before death and was taken to hospital five to six
months prior to death. She also admitted that after execution,
Ex.P18 - Will was handed over to her.
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16. However, she denied knowledge of earlier Will
executed by Junjappa in favour of defendants no.1 and 2. She
also denied suggestion that, Ex.P18 (a) and 18 (b) were not
signatures of testator and that she with attesting witnesses and
scribe had created Will. She also denied suggestion that erasing
and overwriting was for creating Will.
17. It was submitted, in further examination-in-chief on
26.09.1996, PW-1 marked Sale deed dated 19.01.1953 bearing
signature of Junjappa as Ex-P19 and identified his signature as
Ex.P19A, P19B & P19C. She also marked Registered Partition
Deed as Ex.P20. In cross-examination, however, she admitted
Ex.P19 was with her brother Hosurappa - plaintiff no.2 and that
they were not present at time of execution of Ex.P19. She
however identified signature of MH Junjappa. Said statement
was got marked as Ex.D11.
18. Plaintiff also examined Govindappa as PW.2. He
deposed that he knew plaintiffs, defendants and also Junjappa.
He stated during his life time, in year 1982, Junjappa had
called him to house of Hosuramma, where all children of
Junjappa as well as Narasappa, Mariswamy and Mallappa had
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assembled. He stated, at that time Junjappa informed him
about his wife's wish that earlier bequeathal of suit properties
only to defendants was not proper and that all children ought to
receive property equally. Therefore, he got Will at Ex.P18
written from Thippeswamy. He stated that Will was read over
and thereafter Junjappa signed on it. He identified his own
signature as well as that of Junjappa. He denied Ex.P18 - Will
was an illegally created document. During his cross-
examination he was confronted with Sale Deed dated
21.09.1955, Mortgage Deed dated 16.01.1953, Sale Deed
dated 14.03.1963, Agreement of sale dated 14.03.1963 and
Sale Deed dated 16.02.1960. Apart from identifying signatures
of Junjappa on above documents, he also admitted registered
Will dated 09.03.1981, which was got marked as Ex.D7.
Signature of Junjappa on Ex.D7 was marked as Ex.D7 (a) to
(g). He also admitted that all children of Junjappa were present
when Will was executed and Junjappa told him about previous
Will. It was submitted, suggestion about Ex.P18 being created,
about Junjappa having no mental or physical capability to
execute Will were denied.
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19. Insofar as PW-3, it was submitted, though he
deposed about Junjappa calling him, he visiting house of
Hosuramma and about Junjappa expressing intention to cancel
earlier Will by writing another Will to bequeath property to all
children as per wishes of his wife, in cross examination, PW-3
stated Ex.P18 was written in his presence by Thippeswamy, as
per instructions of Junjappa, it took about one hour to
complete.
20. It was submitted, scribe examined as PW-4, stated
that Junjappa called him to house of Hosuramma, gave copy of
Ex.D7 - Will and told him as per wishes of his wife, he wanted
it cancelled by writing new Will bequeathing properties to all his
children. He has stated that, after writing Will, he read it aloud.
After all persons agreed, it was correct, Junjappa signed it and
thereafter Narasappa, Govindappa, Mariswamy and Doddamalla
signed it. He denied suggestion that, himself and witnesses to
Will created it. In cross examination, he admitted that Ex.P18
was written at 11 a.m. in his own pen but denied suggestion
about tinkering with stamp paper.
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21. It was submitted, thereafter plaintiff no.2 was
examined as PW-5. He also deposed on similar terms as other
plaintiff witnesses and denied suggestion about colluding with
others and Ex.D7 being created.
22. It was submitted, defendants no.1 and 2 though
sought to rely on Ex.D7 - Will, they did not prove it as
mandated by law. They examined, Savithramma daughter of
Stamp Vendor Neelakantappa as DW-1. She deposed
Neelakantappa, her father, who was stamp vendor had died.
She got marked his Stamp Register as Ex.D9 and identified his
handwriting on it. She stated handwriting on 2nd page of Ex.P18
was not of her father. During cross-examination, it was
suggested to her that stamp paper used to write - Ex.P18 was
not purchased from her father and her father's signature was
not affixed on second page. Further, NS Ashwathanarayana
Rao, Advocate, was examined as DW-2. He stated that he was
practicing since 42 years in Chitradurga and knew Junjappa for
35 years. He stated, as per instruction of Junjappa, he drafted
and got typed - Ex.D7 - Will and he signed it after Junjappa. He
stated Praveen Chandra and CN Ramachandrappa signed as
attesters. He stated Junjappa was in good health at that time.
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In cross-examination, it was elicited copy of draft was not
retained and he was unaware about daughters of Junjappa.
Thereafter, MH Anjanappa examined himself as DW-3, and
admitted suit properties were allotted to Junjappa in partition,
that his parents were residing with him at Chitradurga until
death and about bequeathal of suit properties to defendants
no.1 and 2 under Ex.D7 - Will was out of love and affection as
they took care of Junjappa. He also stated after completion of
death ceremonies of Junjappa, Will was discovered in trunk. In
cross-examination, it was elicited, defendants bore ill-will
against plaintiffs and Govindappa, MH Narasappa and
Doddamallappa as Narasappa and Doddamallappa had signed
as witnesses to Partition Deed.
23. It was submitted, Praveen Chandra, one of
attestors of Ex.D7 was also examined. He deposed that on
evening of 09.03.1981, Junjappa took him to office of NS
Ashwathanarayana Rao, Advocate, by stating, he was executing
Will. He stated, later CN Ramachandrappa also came there and
NS Ashwathanarayana Rao handed over Ex.D7 - Will, which
was already typed on stamp paper, to Junjappa. After it was
read over, Junjappa signed on each page. Even
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Ramachandrappa, NS Ashwathanarayana Rao also signed on it.
He identified signature of Junjappa.
24. In view of above, it was submitted Ex.P18 suffered
from various suspicious circumstances apart from innumerable
inconsistency in deposition of witnesses which would discredit
Ex.P18 - Will. On other hand, Ex.D7 - Will being duly
registered and duly proved by production of original Will and
examination of attestors, as required in law, defendants were
entitled for suit properties in terms of bequeathal. It was
submitted, impugned judgment and decree passed by first
appellate Court was unsustainable and sought for answering
substantial question of law in favour of defendants, set-aside
judgment and decree passed by first appellate Court and
confirm judgment and decree passed by trial Court.
25. On other hand, Sri S. Basavaraj, learned Senior
Counsel appearing for Sri Goutham A.R., advocate for plaintiffs
no.1 to 6 and defendant no.3 opposed appeal. It was
submitted, PW-1 - Hosuramma deposed defendants took
Junjappa for treatment to Chitradurga and got Ex.P18 alleged
Will executed on ground that their mother insisted for equal
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shares to daughters as they married into poor families. In
cross-examination, DW-1 - Anjanappa stated that his mother
died due to uterus cancer on 21.01.1981 and his father was
under care of plaintiff no.1 at Medakeripura and his father died
due to throat cancer. Further, DW-2 - Praveen Chandra an
attesting witness to Will stated that propositus was residing in
their village. It was stated further that he is not aware about
date, month or year and even not aware of scribe of Will, but,
he states that Will was read over to Junjappa by one
Ashwathanarayana. He further stated that he was not aware of
particulars of properties mentioned in Will. He stated he did not
enquire about exclusive bequeathal of properties to defendants
no.1 and 2 excluding others. He also admitted, he did know if
Ashwathanarayana gave draft.
26. It was submitted, DW-3 - Ashwathanarayana Rao
was scribe of Will. In cross-examination, it was elicited draft
was prepared by him in Kannada language, but, same was not
preserved. He further stated, he was not aware, where it was
got typed. He admitted, he didn't have typewriter in his office
and that Will was not typed in his office. It was submitted, DW-
3 admitted that it was wrongly shown that Will was typed as
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per his dictation. He admitted, on enquiry, Junjappa stated that
his children had got it typed and brought to him. It was
submitted, while dismissing suit trial Court relied on said
admission in paras 56 and 59 as follows:
"56. "Suppose the sons of M.H. Junjappa got typed
Ex.D7 Will it goes to show that the said sons are
none other than defendant No.1 and 2 who are
propounder of the said Will. When the propounder
has got typed the said Will it goes to show that the
said defendants have played more prominent role
in getting Ex.D7 Will. As the plaintiffs obtained their
Will by taking participation in getting Ex.P17 Will.
So at this juncture it is necessary draw our
attention towards the decision reported in AIR 1959
SC 443 in case of Venkatachala lyengar v. B.N.
Thimmajamma and others, Hon'ble Supreme Court
of India has laid down law of principles as follows:
Apart from the suspicious circumstances to which
we have just referred in some cases the Wills
propounded disclose another infirmity. Propounder
themselves take a prominent part in execution of
Will and has received substantial benefit under it,
that itself is generally treated as a suspicious
circumstance attending the execution of the Will
and the propounder is required to remove the said
suspicion by clear and satisfactory evidence"
Para 59. "Another important aspect shall have to be
taken into account in respect of while executing
Ex.D7 will why other children of M.H. Junjappa
have been excluded. Only explanation offered is
that Plaintiffs are well settled in life. But it is not
the case of defendants they were not settled in life
though the other children of testator settled in their
life. Hence, these contentions of defendants as
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reasons for bequeath by the testator exclusively to
defendant No.1 and 2 cannot be accepted in fact
there is no proper and cogent evidence on behalf of
defendants No.1 and 2 as reason of exclusion of
other children by testator only to bequeath his
properties to defendant No.1 and 2. Hence this is
also a suspicious circumstances for creating of
Ex.D7 by the defendants no.1 and 2. When the
propounder is not examined the typist who typed
the Will which is not in accordance with draft Will,
there are suspicious circumstances for creation of
Ex.D7."
27. It was further submitted, as admitted Hanumakka
died on 21.01.1981 and execution of Ex.D7 - Will on
09.03.1981, within three months that too by excluding other
children was a grave suspicious circumstance. Hence, first
appellate Court rightly granted equal shares to all children of
Junjappa in suit properties. In support of submissions, learned
Senior Counsel relied on decisions of Hon'ble Supreme Court in
case of Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead,
through LRs), reported in 2023 INSC 1004; H. Venkatachala
Iyengar v. B.N.Thimmajamma & Ors., reported in 1958
SCC OnLine SC 31; Thambammal v. Subbayammal,
reported in 2017 SCC OnLine Mad 1687; and
Uthammappan v. S. Rajannan (S.A.no.1356/2008 disposed
of on 09.07.2015) High Court of Judicature at Madras. On
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above grounds, prayed for answering substantial question of
law against defendants no.1 and 2 and dismiss appeal.
28. Heard learned counsel, perused impugned
judgment and decree and record.
29. This appeal is by defendants no.1 and 2 against
divergent findings in suit for declaration and permanent
injunction etc. Plaintiffs' claim for declaration is based on
Ex.P18 - unregistered Will. As per plaint averments, need for
declaration arose in view of fact that defendants no.1 and 2
were claiming exclusive right over suit properties under Ex.D7
- registered Will. Admittedly, there is no dispute about right of
testator to bequeath suit properties.
30. It is seen that both parties are claiming right over
suit properties under respective Will. Plaintiffs' claim is under
Ex.P18 - unregistered Will dated 06.10.1982 by Junjappa
bequeathing suit properties to all his children equally. And
since, Junjappa had four sons and six daughters, they were
claiming 1/10th share each. On other hand, claim of defendants
no.1 and 2 is under Ex.D7 - registered Will dated 09.03.1981
by Junjappa bequeathing suit properties jointly to defendants
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no.1 and 2 only. However, trial Court held Ex.P18 as not
proved and same is upheld by first appellate Court. Plaintiffs
are not in appeal.
31. Insofar as Ex.D7, trial Court, held it proved, said
finding is reversed by first appellate Court. In this appeal,
defendants no.1 and 2 are challenging divergent finding insofar
as Ex.D7 - Will. In order to examine same, it would be useful to
refer to law about claims based on Will. Hon'ble Supreme Court
in case of Kavita Kanwar v. Pamela Mehta, reported in
(2021) 11 SCC 209, examined it in detail as follows:
"Will -- Proof and satisfaction of the Court:
23. It remains trite that a will is the testamentary
document that comes into operation after the death
of the testator. The peculiar nature of such a
document has led to solemn provisions in the
statutes for making of a will and for its proof in a
court of law. Section 59 of the Succession Act
provides that every person of sound mind, not
being a minor, may dispose of his property by will.
A will or any portion thereof, the making of which
has been caused by fraud or coercion or by any
such importunity that has taken away the free
agency of the testator, is declared to be void under
Section 61 of the Succession Act; and further,
Section 62 of the Succession Act enables the maker
of a will to make or alter the same at any time
when he is competent to dispose of his property by
will. Chapter III of Part IV of the Succession Act
makes the provision for execution of unprivileged
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wills (as distinguished from privileged wills provided
for in Chapter IV) with which we are not concerned
in this case.
23.1. Sections 61 and 63 of the Succession Act,
relevant for the present purpose, could be usefully
extracted as under:
"61. Will obtained by fraud, coercion or
importunity.--A will or any part of a will, the
making of which has been caused by fraud or
coercion, or by such importunity as takes away
the free agency of the testator, is void. ...
***
63. Execution of unprivileged wills.--Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall
execute his will according to the following rules--
(a) The testator shall sign or shall affix his mark to
the will, or it shall be signed by some other
person in his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall
be so placed that it shall appear that it was
intended thereby to give effect to the writing
as a will.
(c) The will shall be attested by two or more
witnesses, each of whom has 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 his signature or
mark, or the signature of such other person;
and each of the witnesses shall sign the will in
the presence of the testator, but it shall not
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be necessary that more than one witness be
present at the same time, and no particular
form of attestation shall be necessary."
23.2. Elaborate provisions have been made in
Chapter VI of the Succession Act (Sections 74 to
111), for construction of wills which, in their sum
and substance, make the intention of legislature
clear that any irrelevant mis-description or error is
not to operate against the will; and approach has to
be to give effect to a will once it is found to have
been executed in the sound state of mind by the
testator while exercising his own free will. However,
as per Section 81 of the Succession Act, extrinsic
evidence is inadmissible in case of patent ambiguity
or deficiency in the will; and as per Section 89
thereof, a will or bequest not expressive of any
definite intention is declared void for uncertainty.
Sections 81 and 89 read as under:
"81. Extrinsic evidence inadmissible in case of
patent ambiguity or deficiency.--Where there is
an ambiguity or deficiency on the face of a will,
no extrinsic evidence as to the intentions of the
testator shall be admitted. ...
***
89. Will or bequest void for uncertainty.--A will or
bequest not expressive of any definite intention is
void for uncertainty."
Moreover, it is now well settled that when the will is
surrounded by suspicious circumstances, the Court
would expect that the legitimate suspicion should
be removed before the document in question is
accepted as the last will of the testator.
23.3. As noticed, as per Section 63 of the
Succession Act, the will ought to be attested by two
or more witnesses. Hence, any document
propounded as a will cannot be used as evidence
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unless at least one attesting witness has been
examined for the purpose of proving its execution,
if such witness is available and is capable of giving
evidence as per the requirements of Section 68 of
the Evidence Act, that reads as under:
"68. Proof of execution of document required by
law to be attested.--If a document is required
by law to be attested, it shall not be used as
evidence until 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:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of
any document, not being a will, which has been
registered in accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it
purports to have been executed is specifically
denied."
24. We may now take note of the relevant
principles settled by the consistent decisions in
regard to the process of examination of a will when
propounded before a court of law.
24.1. In H. Venkatachala Iyengar v.
B.N.Thimmajamma, AIR 1959 SC 443, a three-
Judge Bench of this Court traversed through the
vistas of the issues related with execution and
proof of will and enunciated a few fundamental
guiding principles that have consistently been
followed and applied in almost all the cases
involving such issues. The synthesis and exposition
by this Court in paras 18 to 22 of the said decision
could be usefully reproduced as under: (AIR pp.
451-52)
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"18. What is the true legal position in the matter
of proof of wills? It is well known that the proof
of wills presents a recurring topic for decision in
courts and there are a large number of judicial
pronouncements on the subject. The party
propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a
document and, in deciding how it is to be
proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68, Evidence Act are relevant
for this purpose. Under Section 67, if a
document is alleged to be signed by any person,
the signature of the said person must be proved
to be in his handwriting, and for proving such a
handwriting under Sections 45 and 47 of the Act
the opinions of experts and of persons
acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals
with the proof of the execution of the document
required by law to be attested; and it provides
that such a document shall not be used as
evidence until one attesting witness at least has
been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which
must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections
59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person
of sound mind, not being a minor, may dispose
of his property by will and the three illustrations
to this section indicate what is meant by the
expression "a person of sound mind" in the
context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall
be signed by some other person in his presence
and by his direction and that the signature or
mark shall be so made that it shall appear that
it was intended thereby to give effect to the
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writing as a will. This section also requires that
the will shall be attested by two or more
witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is
proved to be the last will of the testator has to
be decided in the light of these provisions. Has
the testator signed the will? Did he understand
the nature and effect of the dispositions in the
will? Did he put his signature to the will knowing
what it contained? Stated broadly it is the
decision of these questions which determines
the nature of the finding on the question of the
proof of wills. It would prima facie be true to say
that the will has to be proved like any other
document except as to the special requirements
of attestation prescribed by Section 63 of the
Indian Succession Act. As in the case of proof of
other documents so in the case of proof of wills
it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of the
prudent mind in such matters.
19. However, there is one important feature
which distinguishes wills from other documents.
Unlike other documents the will speaks from the
death of the testator, and so, when it is
propounded or produced before a Court, the
testator who has already departed the world
cannot say whether it is his will or not; and this
aspect naturally introduces an element of
solemnity in the decision of the question as to
whether the document propounded is proved to
be the last will and testament of the departed
testator. Even so, in dealing with the proof of
wills the Court will start on the same enquiry as
in the case of the proof of documents. The
propounder would be called upon to show by
satisfactory evidence that the will was signed by
the testator, that the testator at the relevant
- 31 -
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time was in a sound and disposing state of
mind, that he understood the nature and effect
of the dispositions and put his signature to the
document of his own free will. Ordinarily when
the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove
the sound and disposing state of the testator's
mind and his signature as required by law,
Courts would be justified in making a finding in
favour of the propounder. In other words, the
onus on the propounder can be taken to be
discharged on proof of the essential facts just
indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature
of the testator may be very shaky and doubtful
and evidence in support of the propounder's
case that the signature in question is the
signature of the testator may not remove the
doubt created by the appearance of the
signature; the condition of the testator's mind
may appear to be very feeble and debilitated;
and evidence adduced may not succeed in
removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made
in the will may appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or, the will may otherwise
indicate that the said dispositions may not be
the result of the testator's free will and mind. In
such cases the Court would naturally expect that
all legitimate suspicions should be completely
removed before the document is accepted as
the last will of the testator. The presence of
such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it
is satisfactorily discharged, Courts would be
reluctant to treat the document as the last will
- 32 -
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of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud
or coercion in respect of the execution of the will
propounded, such pleas may have to be proved
by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether
the testator was acting of his own free will in
executing the will, and in such circumstances, it
would be a part of the initial onus to remove any
such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to
which we have just referred in some cases the
wills propounded disclose another
infirmity. Propounders themselves take a
prominent part in the execution of the wills
which confer on them substantial benefits. If it
is shown that the propounder has taken a
prominent part in the execution of the will and
has received substantial benefit under it, that
itself is generally treated as a suspicious
circumstance attending the execution of the will
and the propounder is required to remove the
said suspicion by clear and satisfactory
evidence. It is in connection with wills that
present such suspicious circumstances that
decisions of English Courts often mention the
test of the satisfaction of judicial conscience. It
may be that the reference to judicial conscience
in this connection is a heritage from similar
observations made by ecclesiastical Courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use
of the word "conscience" in this context would,
in our opinion, be purely technical and
academic, if not pedantic. The test merely
emphasises that, in determining the question as
to whether an instrument produced before the
Court is the last will of the testator, the Court is
deciding a solemn question and it must be fully
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satisfied that it had been validly executed by the
testator who is no longer alive.
22. It is obvious that for deciding material
questions of fact which arise in
applications for probate or in actions on
wills, no hard-and-fast or inflexible rules
can be laid down for the appreciation of the
evidence. It may, however, be stated
generally that a propounder of the will has
to prove the due and valid execution of the
will and that if there are any suspicious
circumstances surrounding the execution
of the will the propounder must remove the
said suspicions from the mind of the Court
by cogent and satisfactory evidence. It is
hardly necessary to add that the result of
the application of these two general and
broad principles would always depend
upon the facts and circumstances of each
case and on the nature and quality of the
evidence adduced by the parties. It is quite
true that, as observed by Lord Du Parcq in
Harmes v. Hinkson [Harmes v. Hinkson, 1946
SCC OnLine PC 20: AIR 1946 PC 156: (1945-46)
50 CWN 895], "where a will is charged with
suspicion, the rules enjoin a reasonable
scepticism, not an obdurate persistence in
disbelief. They do not demand from the Judge,
even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is
never required to close his mind to the truth". It
would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even
in such cases the judicial mind must always be
open though vigilant, cautious and circumspect."
(emphasis supplied)
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24.2. In Purnima Debi [Purnima Debi v. Kumar
Khagendra Narayan Deb, (1962) 3 SCR 195: AIR
1962 SC 567], this Court referred to the
aforementioned decision in H. Venkatachala
Iyengar [H. Venkatachala Iyengar v. B.N.
Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1)
SCR 426] and further explained the principles which
govern the proving of a will as follows : (Purnima
Debi case [Purnima Debi v. Kumar Khagendra
Narayan Deb, (1962) 3 SCR 195 : AIR 1962 SC
567] , AIR p. 569, para 5)
"5. Before we consider the facts of this case it is
well to set out the principles which govern the
proving of a will. This was considered by this
Court in H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, AIR 1959 SC 443: 1959 Supp
(1) SCR 426]. It was observed in that case that
the mode of proving a will did not ordinarily
differ from that of proving any other document
except as to the special requirement of
attestation prescribed in the case of a will by
Section 63 of the Indian Succession Act. The
onus of proving the will was on the propounder
and in the absence of suspicious circumstances
surrounding the execution of the will proof of
testamentary capacity and signature of the
testator as required by law was sufficient to
discharge the onus. Where, however, there were
suspicious circumstances, the onus would be on
the propounder to explain them to the
satisfaction of the Court before the will could be
accepted as genuine. If the caveator alleged
undue influence, fraud or coercion, the onus
would be on him to prove the same. Even where
there were no such pleas but the circumstances
gave rise to doubts, it was for the propounder to
satisfy the conscience of the Court. Further,
what are suspicious circumstances was also
- 35 -
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considered in this case. The alleged signature of
the testator might be very shaky and doubtful
and evidence in support of the propounder's
case that the signature in question was the
signature of the testator might not remove the
doubt created by the appearance of the
signature. The condition of the testator's mind
might appear to be very feeble and debilitated
and evidence adduced might not succeed in
removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made
in the will might appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or the will might otherwise
indicate that the said dispositions might not be
the result of the testator's free will and mind. In
such cases, the Court would naturally expect
that all legitimate suspicions should be
completely removed before the document was
accepted as the last will of the testator. Further,
a propounder himself might take a prominent
part in the execution of the will which conferred
on him substantial benefits. If this was so it was
generally treated as a suspicious circumstance
attending the execution of the will and the
propounder was required to remove the doubts
by clear and satisfactory evidence. But even
where there were suspicious circumstances and
the propounder succeeded in removing them,
the Court would grant probate, though the will
might be unnatural and might cut off wholly or
in part near relations."
(emphasis supplied)
24.3. In Indu Bala Bose [Indu Bala
Bose v. Manindra Chandra Bose, (1982) 1 SCC 20],
this Court again said: (SCC pp. 22-23, paras 7-8)
"7. This Court has held that the mode of proving
a will does not ordinarily differ from that of
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proving any other document except to the
special requirement of attestation prescribed in
the case of a will by Section 63 of the
Succession Act. The onus of proving the will is
on the propounder and in the absence of
suspicious circumstances surrounding the
execution of the will, proof of testamentary
capacity and the signature of the testator as
required by law is sufficient to discharge the
onus. Where however there are suspicious
circumstances, the onus is on the propounder to
explain them to the satisfaction of the court
before the court accepts the will as genuine.
Even where circumstances give rise to doubts, it
is for the propounder to satisfy the conscience
of the court. The suspicious circumstances may
be as to the genuineness of the signatures of
the testator, the condition of the testator's
mind, the dispositions made in the will being
unnatural, improbable or unfair in the light of
relevant circumstances, or there might be other
indications in the will to show that the testator's
mind was not free. In such a case the court
would naturally expect that all legitimate
suspicions should be completely removed before
the document is accepted as the last will of the
testator. If the propounder himself takes a
prominent part in the execution of the will which
confers a substantial benefit on him, that is also
a circumstance to be taken into account, and
the propounder is required to remove the
doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the court would grant probate,
even if the will might be unnatural and might
cut off wholly or in part near relations. [Ed. :
See Shashi Kumar Banerjee v. Subodh Kumar
Banerjee, AIR 1964 SC 529; H. Venkatachala
Iyengar v. B.N. Thimmajamma, AIR 1959 SC
443 : 1959 Supp (1) SCR 426; Rani Purnima
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Devi v. Kumar Khagendra Narayan Dev, AIR
1962 SC 567 : (1962) 3 SCR 195]
8. Needless to say that any and every
circumstance is not a "suspicious"
circumstance. A circumstance would be
"suspicious" when it is not normal or is not
normally expected in a normal situation or
is not expected of a normal person."
(emphasis supplied and in original)
24.4. We may also usefully refer to the principles
enunciated in Jaswant Kaur [Jaswant Kaur v. Amrit
Kaur, (1977) 1 SCC 369] for dealing with a will
shrouded in suspicion, as follows: (SCC p. 373,
para 9)
"9. In cases where the execution of a will is
shrouded in suspicion, its proof ceases to be a
simple lis between the plaintiff and the
defendant. What, generally, is an adversary
proceeding becomes in such cases a matter of
the court's conscience and then the true
question which arises for consideration is
whether the evidence led by the propounder of
the will is such as to satisfy the conscience of
the court that the will was duly executed by the
testator. It is impossible to reach such
satisfaction unless the party which sets up the
will offers a cogent and convincing explanation
of the suspicious circumstances surrounding the
making of the will."
(emphasis supplied)
24.5. In Uma Devi Nambiar [Uma Devi
Nambiar v. T.C. Sidhan, (2004) 2 SCC 321], this
Court extensively reviewed the case law dealing
with a will, including the Constitution Bench
decision of this Court in Shashi Kumar
Banerjee v. Subodh Kumar Banerjee [Shashi Kumar
- 38 -
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Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC
529] , and observed that mere exclusion of the
natural heirs or giving of lesser share to them, by
itself, will not be considered to be a suspicious
circumstance. This Court observed, inter alia, as
under: (Uma Devi Nambiar case [Uma Devi
Nambiar v. T.C. Sidhan, (2004) 2 SCC 321], SCC
pp. 332-34, paras 15-16)
"15. Section 63 of the Act deals with execution
of unprivileged wills. It lays down that the
testator shall sign or shall affix his mark to the
will or it shall be signed by some other person in
his presence and by his direction. It further lays
down that the will shall be attested by two or
more witnesses, each of whom has seen the
testator signing or affixing his mark to the will
or has seen some other person sign the will, in
the presence and by the direction of the testator
and each of the witnesses shall sign the will in
the presence of the testator. Section 68 of the
Indian Evidence Act, 1872 (in short "the
Evidence Act") mandates examination of one
attesting witness in proof of a will, whether
registered or not. The law relating to the
manner and onus of proof and also the duty cast
upon the court while dealing with a case based
upon a will has been examined in considerable
detail in several decisions [H. Venkatachala
Iyengar v. B.N. Thimmajamma, AIR 1959 SC
443: 1959 Supp (1) SCR 426] , [Purnima
Debi v. Kumar Khagendra Narayan Deb, (1962)
3 SCR 195: AIR 1962 SC 567] , [Shashi Kumar
Banerjee v. Subodh Kumar Banerjee, AIR 1964
SC 529] of this Court. ... A Constitution Bench of
this Court in Shashi Kumar Banerjee
case [Shashi Kumar Banerjee v. Subodh Kumar
Banerjee, AIR 1964 SC 529] succinctly indicated
the focal position in law as follows : (AIR p. 531,
para 4)
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'4. ... The mode of proving a will does not
ordinarily differ from that of proving any other
document except as to the special requirement
of attestation prescribed in the case of a will by
Section 63 of the Indian Succession Act. The
onus of proving the will is on the propounder
and in the absence of suspicious circumstances
surrounding the execution of the will, proof of
testamentary capacity and the signature of the
testator as required by law is sufficient to
discharge the onus. Where however there are
suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction
of the court before the court accepts the will as
genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him
to prove the same. Even where there are no
such pleas but the circumstances give rise to
doubts, it is for the propounder to satisfy the
conscience of the court. The suspicious
circumstances may be as to the genuineness of
the signature of the testator, the condition of
the testator's mind, the dispositions made in the
will being unnatural, improbable or unfair in the
light of relevant circumstances or there might be
other indications in the will to show that the
testator's mind was not free. In such a case the
court would naturally expect that all legitimate
suspicion should be completely removed before
the document is accepted as the last will of the
testator. If the propounder himself takes
part in the execution of the will which
confers a substantial benefit on him, that is
also a circumstance to be taken into
account, and the propounder is required to
remove the doubts by clear and
satisfactory evidence. If the propounder
succeeds in removing the suspicious
circumstances the court would grant probate,
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even if the will might be unnatural and might
cut off wholly or in part near relations.'
16. A will is executed to alter the ordinary
mode of succession and by the very nature
of things, it is bound to result in either
reducing or depriving the share of natural
heirs. If a person intends his property to
pass to his natural heirs, there is no
necessity at all of executing a will. It is
true that a propounder of the will has to
remove all suspicious circumstances.
Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs
have either been excluded or a lesser share
has been given to them, by itself without
anything more, cannot be held to be a
suspicious circumstance especially in a
case where the bequest has been made in
favour of an offspring. As held in P.P.K.
Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar [P.P.K. Gopalan Nambiar v. P.P.K.
Balakrishnan Nambiar, 1995 Supp (2) SCC 664],
it is the duty of the propounder of the will to
remove all the suspected features, but there
must be real, germane and valid suspicious
features and not fantasy of the doubting mind.
It has been held that if the propounder succeeds
in removing the suspicious circumstances, the
court has to give effect to the will, even if the
will might be unnatural in the sense that it has
cut off wholly or in part near relations. ... In
Rabindra Nath Mukherjee v. Panchanan
Banerjee [Rabindra Nath Mukherjee
v. Panchanan Banerjee, (1995) 4 SCC 459], it
was observed that the circumstance of
deprivation of natural heirs should not raise any
suspicion because the whole idea behind
execution of the will is to interfere with the
normal line of succession and so, natural heirs
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would be debarred in every case of will. Of
course, it may be that in some cases they are
fully debarred and in some cases partly."
24.6. In Mahesh Kumar [Mahesh Kumar v. Vinod
Kumar, (2012) 4 SCC 387 : (2012) 2 SCC (Civ.)
526], this Court indicated the error of approach on
the part of the High Court while appreciating the
evidence relating to the will as follows: (SCC pp.
405-06, paras 44-46)
"44. The issue which remains to be examined is
whether the High Court was justified in coming
to the conclusion that the execution of the will
dated 10-2-1992 was shrouded with suspicion
and the appellant failed to dispel the suspicion?
At the outset, we deem it necessary to observe
that the learned Single Judge misread the
statement of Sobhag Chand (DW 3) and
recorded something which does not appear in
his statement. While Sobhag Chand
categorically stated that he had signed as the
witness after Shri Harishankar had signed the
will, the portion of his statement extracted in
the impugned judgment gives an impression
that the witnesses had signed even before the
executant had signed the will.
45. Another patent error committed by the
learned Single Judge is that he decided the issue
relating to validity of the will by assuming that
both the attesting witnesses were required to
append their signatures simultaneously. Section
63(c) of the 1925 Act does not contain any such
requirement and it is settled law that
examination of one of the attesting witnesses is
sufficient. Not only this, while recording an
adverse finding on this issue, the learned Single
Judge omitted to consider the categorical
statements made by DW 3 and DW 4 that the
testator had read out and signed the will in their
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presence and thereafter they had appended
their signatures.
46. The other reasons enumerated by the
learned Single Judge for holding that the
execution of the will was highly suspicious are
based on mere surmises/conjectures. The
observation of the learned Single Judge that the
possibility of obtaining signatures of Shri
Harishankar and attesting witnesses on blank
paper and preparation of the draft by Shri S.K.
Agarwal, Advocate on pre-signed papers does
not find even a semblance of support from the
pleadings and evidence of the parties. If
Respondent 1 wanted to show that the will was
drafted by the advocate after Shri Harishankar
and the attesting witnesses had signed blank
papers, he could have examined or at least
summoned Shri S.K. Agarwal, Advocate, who
had represented him before the Board of
Revenue."
24.7. Another decision cited on behalf of the
appellant in Leela Rajagopal [Leela
Rajagopal v. Kamala Menon Cocharan, (2014) 15
SCC 570: (2015) 4 SCC (Civ) 267] may also be
referred wherein this Court summarised the
principles that ultimately, the judicial verdict in
relation to a will and suspicious circumstances shall
be on the basis of holistic view of the matter with
consideration of all the unusual features and
suspicious circumstances put together and not on
the impact of any single feature. This Court said:
(SCC p. 576, para 13)
"13. A will may have certain features and may
have been executed in certain circumstances
which may appear to be somewhat unnatural.
Such unusual features appearing in a will or the
unnatural circumstances surrounding its
execution will definitely justify a close scrutiny
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before the same can be accepted. It is the
overall assessment of the court on the basis of
such scrutiny; the cumulative effect of the
unusual features and circumstances which would
weigh with the court in the determination
required to be made by it. The judicial verdict,
in the last resort, will be on the basis of a
consideration of all unusual features and
suspicious circumstances put together and not
on the impact of any single feature that may be
found in a will or a singular circumstance that
may appear from the process leading to its
execution or registration. This, is the essence of
the repeated pronouncements made by this
Court on the subject including the decisions
referred to and relied upon before us."
24.8. We need not multiply the references to all
and other decisions cited at the Bar, which
essentially proceed on the aforesaid principles while
applying the same in the given set of facts and
circumstances. Suffice would be to point out that in
a recent decision
in Shivakumar v. Sharanabasappa (2021) 11 SCC
277, this Court, after traversing through the
relevant decisions, has summarised the principles
governing the adjudicatory process concerning
proof of a will as follows : (SCC pp. 309-10, para
12)
"12. ... 12.1. Ordinarily, a will has to be proved
like any other document; the test to be applied
being the usual test of the satisfaction of the
prudent mind. Alike the principles governing the
proof of other documents, in the case of will too,
the proof with mathematical accuracy is not to
be insisted upon.
12.2. Since as per Section 63 of the Succession
Act, a will is required to be attested, it cannot
be used as evidence until at least one attesting
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witness has been called for the purpose of
proving its execution, if there be an attesting
witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it
speaks from the death of the testator and,
therefore, the maker thereof is not available for
deposing about the circumstances in which the
same was executed. This introduces an element
of solemnity in the decision of the question as to
whether the document propounded is the last
will of the testator. The initial onus, naturally,
lies on the propounder but the same can be
taken to have been primarily discharged on
proof of the essential facts which go into the
making of a will.
12.4. The case in which the execution of
the will is surrounded by suspicious
circumstances stands on a different
footing. The presence of suspicious
circumstances makes the onus heavier on
the propounder and, therefore, in cases
where the circumstances attendant upon
the execution of the document give rise to
suspicion, the propounder must remove all
legitimate suspicion before the document
can be accepted as the last will of the
testator.
12.5. If a person challenging the will
alleges fabrication or alleges fraud, undue
influence, coercion et cetera in regard to
the execution of the will, such pleas have
to be proved by him, but even in the
absence of such pleas, the very
circumstances surrounding the execution
of the will may give rise to the doubt or as
to whether the will had indeed been
executed by the testator and/or as to
whether the testator was acting of his own
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free will. In such eventuality, it is again a
part of the initial onus of the propounder to
remove all reasonable doubts in the
matter.
12.6. A circumstance is "suspicious" when
it is not normal or is 'not normally expected
in a normal situation or is not expected of a
normal person'. As put by this Court, the
suspicious features must be "real, germane
and valid" and not merely the "fantasy of
the doubting mind".
12.7. As to whether any particular feature
or a set of features qualify as "suspicious"
would depend on the facts and
circumstances of each case. A shaky or
doubtful signature; a feeble or uncertain
mind of the testator; an unfair disposition
of property; an unjust exclusion of the
legal heirs and particularly the dependants;
an active or leading part in making of the
will by the beneficiary thereunder et cetera
are some of the circumstances which may
give rise to suspicion. The circumstances
above noted are only illustrative and by no
means exhaustive because there could be
any circumstance or set of circumstances
which may give rise to legitimate suspicion
about the execution of the will. On the
other hand, any of the circumstances
qualifying as being suspicious could be
legitimately explained by the propounder.
However, such suspicion or suspicions
cannot be removed by mere proof of sound
and disposing state of mind of the testator
and his signature coupled with the proof of
attestation.
12.8. The test of satisfaction of the judicial
conscience comes into operation when a
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document propounded as the will of the
testator is surrounded by suspicious
circumstance(s). While applying such test,
the court would address itself to the
solemn questions as to whether the
testator had signed the will while being
aware of its contents and after
understanding the nature and effect of the
dispositions in the will?
12.9. In the ultimate analysis, where the
execution of a will is shrouded in suspicion,
it is a matter essentially of the judicial
conscience of the court and the party which
sets up the will has to offer cogent and
convincing explanation of the suspicious
circumstances surrounding the will."
(emphasis supplied)
32. While passing impugned judgment and decree, trial
Court took note of deposition of plaintiff no.4 as PW-1, that
Ex.P18 - Will was executed at her house in year 1982 at 12:00
p.m. in presence of attestors Mallanna, Govindappa,
Mariswamy, Narasappa and scribe Thippeswamy who prepared
it as per instructions given by Junjappa bequeathing suit
properties in equal proportion to all his children. It observed,
she identified signatures of Junjappa on Will as well as on
Ex.P20 - partition deed, Ex.P19 - sale deed. It noted Pw-2 and
3 attestors as well as scribe reiterated same.
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33. Thereafter, it took note of evidence let in by
defendants. Firstly, Savithramma daughter of Stamp vendor
examined as DW-1, produced stamp register maintained by her
father as Ex.D9, stated handwriting on second page of Ex.P18
was not that of her father and entry at Ex.P9 (a) i.e. Sl.no.425
showed name of person to whom stamp paper was issued was
Vimala. Secondly, Ashwathanarayana Rao Advocate, examined
as DW-2 deposed that he knew Junjappa for 35 years and as
per his instructions prepared draft Will and after it was read
over, Junjappa signed it along with other attestors, in his
presence.
34. Thirdly, Anjanappa - defendant no.1 examined as
DW-3 stating that suit properties fallen to share of Junjappa in
partition were bequeathed to defendants no.1 and 2 under
Ex.D7 - Will. It observed DW-3 admitted Junjappa died due to
cancer. Lastly, Praveen Chandra - attestor, deposed about
Junjappa asking him to accompany him to office of
Ashwathanarayana Rao advocate, for execution of Will and that
after Ashwathanarayana Rao, read over Will, Junjappa signed it
in presence of himself and Ramachandrappa and about
Ashwathanarayana Rao, advocate also signing it.
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35. Trial Court disbelieved Ex.P18 mainly on ground
that unlike Ex.D7 - Will which was registered, Ex.P18 - Will
was unregistered and drawn on stamp paper issued to one
Vimala, which was suspicious circumstance. Further,
handwriting expert certified signature found on Ex.P18 - Will
was not by Junjappa. And if intention of testator was to cancel
earlier Will, he could have done so without need for execution
of one more Will.
36. Insofar as Ex.D7 - Will, it noted defendants had
examined Praveen Chandra and Ashwathanarayana Rao as
attestors apart from marking copies of sale deeds, partition
deed, mortgage deed and registered agreement bearing
signature of Junjappa to corroborate signature of executant on
Ex.D7 - Will. It found explanation about marriage of daughters
being celebrated during life time of Junjappa, by giving them
sufficient money and jewelry as acceptable. On said findings, it
dismissed suit.
37. In appeal, first appellate Court observed plaintiffs
admitted Ex.D7 - Will as they had sought prayer for its
cancellation and for grant of 1/10th share as per Ex.P18 - Will.
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It noted plaintiff no.4 as PW-1, attestors Govindappa, Mallappa
and scribe Thippeswamy as PWs-2 to 4 respectively, deposed
that Ex.P18 - Will was executed in house of Hosuramma at
12:00 p.m. in year 1982, in presence of all children. It noted
assertion of PW-1 that she along with brothers and sisters
signed on Will to be contrary to record. It also noted PW-2
admitted Junjappa being under treatment for throat cancer with
feeding tube inserted in his neck. It also noted admission by
PW-5 (plaintiff no.2) that he was not present at time of
execution of Ex.P18 - Will, and unaware of it, until after death
of Junjappa when question arose about succession to properties
left behind and its production by his father-in-law - Narasappa
were material contradictions. It also noted handwriting expert
had certified that signature on Ex.P18 was not by Junjappa, in
addition Stamp Paper on which it was drawn had erasing marks
and Stamp Register showed name of issuee as Vimala as
unexplained suspicious circumstances, denying claim based on
it.
38. Insofar as Ex.D7, it noted additional issue dated
13.10.2009 framed as per order passed in RFA.no.223/2003
cast burden of proving said Will on defendants. While assessing
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evidence, it noted inconsistency in deposition of
Ashwathanarayana Rao - scribe. It noted, prior to remand, he
had deposed that he drafted Will and Junjappa got it typed,
which he identified as Ex.D7 along with his signature as Ex.D7
(h) and about Junjappa executing it in presence of attestors.
But, after remand, it noted, he stated that on enquiry, Junjappa
told him that Ex.D7 - Will was got typed by his children would
indicate propounders playing prominent role in preparation of
Ex.D7 - Will. Further, admission that endorsement on Will that
it was 'typed to his dictation' was incorrect and Praveen
Chandra stating that he was unaware who got Ex.D7 prepared
and Junjappa having daughters, casting doubt. It also found
scribe signing as attestor to be suspicious. Apart from above, it
observed only explanation that other children were well settled
would not justify bequeathal only to defendants no.1 and 2. On
said reasons, it held Ex.D7 - Will as not proved, but granted
relief of notional partition to plaintiffs.
39. It is seen, appeal was admitted on 08.07.2013 to
consider following substantial question of law:
"Whether first appellate Court was justified in
reversing finding of trial Court on additional
issue dated 29.07.2002 regarding registered
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Will dated 09.03.1981 and consequently
reversing judgment and decree passed by Court
below?"
40. Same is in respect of divergent finding on additional
issue framed on 13.10.2009 about validity of Ex.D7 - Will. It is
seen first appellate Court disbelieved Ex.D7, on following
suspicious circumstances:
• Inconsistent deposition by Ashwathanarayana Rao,
Advocate, about drafting and preparation of Ex.D7;
• Propounders playing role in preparation of Ex.D7;
• Scribe deposing as attestor;
• Praveen Chandra being unaware of contents of
Ex.D7 and about existence of daughters of Junjappa
who were excluded from bequeathal;
• Unacceptable explanation for bequeathal by
excluding some of natural successors;
41. As per Kavita Kanwar's case (supra), in order to
sustain claim under Will, propounder is not only required to
establish due compliance with Section 63 of Indian Succession
Act, 1925 and Section 68 of Indian Evidence Act, 1872, but also
explain away all suspicious circumstances shrouding Will.
Indeed, in B. Venkatamuni v. C.J. Ayodhya Ram Singh,
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reported in (2006) 13 SCC 449, it is held, there exists
distinction between well founded and bare suspicion and Court
must not start with suspicion and close its mind to find truth as
resolute impenetrable incredulity is not demanded even if there
exists circumstances of grave suspicion. But scrutiny in an
appeal under Section 100 of CPC would be limited only to
substantial question of law. Normally, finding about Will
suffering from suspicious circumstances would be a finding of
fact, unless perverse.
42. Therefore, it has to be examined, whether finding of
first appellate Court about validity of Ex.D7 was based on
assessment of all material on record or was contrary to
material on record. It is seen, to prove Ex.D7, defendants
examined Ashwathanarayana Rao and Praveen Chandra.
Ashwathanarayana Rao deposed that he was practicing as
advocate since 50 years and knew Junjappa for more than 35
years. And that on 09.03.1981, Junjappa approached him for
preparation of Will, and collected draft prepared by him. After it
was got typed, Junjappa executed it, in presence of attestors -
Praveen Chandra and Ramachandrappa. After remand, he
added certain details, that Junjappa had approached him one
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week prior to 09.03.1981, expressing intention to execute Will
bequeathing suit properties to defendants no.1 and 2, collecting
draft on morning of 09.03.1981 and returning at 5:00 pm with
typed copy and thereafter executing it in presence of attestors
and he signing it after Junjappa. In cross-examination, he
admitted, he was unaware where Ex.D7 was got typed, and on
enquiry, Junjappa informed him that his children got it typed.
And on being questioned about he endorsing it as scribe,
denying same.
43. Though, there is no dispute about law that
'attestation', meant signing of document to signify that attestor
is witness to execution of said document. And as per Section 63
(c) of Indian Succession Act, 1925, attesting witness was one
who signs document in presence of executant after seeing
execution of document or after receiving personal
acknowledgment from executant about execution of document,
as held by Hon'ble Supreme Court in Seth Beni
Chand v. Kamla Kunwar, reported in (1976) 4 SCC 554.
Consequently, there would be no prohibition against scribe
acting as attestor, first appellate Court has assessed evidence
in light of entire circumstances about need for attestor to have
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signed as scribe in light of his denial about where Ex.D7 was
got typed. But, damning reason was deposition about testator
disclosing to him about participation of propounders in process
of preparation of Will, about which there was no explanation at
all by defendants. It is also seen first appellate Court took note
of admission by Praveen Chandra being unaware about
properties of testator, about his daughters etc. despite claiming
to be well acquainted with Junjappa.
44. Thus, assessment by first appellate Court is in light
of entire material on record and compliant with principles for
appreciation of suspicious circumstances espoused in Kavita
Kanwar's case (supra) as well as proper exercise of jurisdiction
of first appellate Court as held in Santosh Hazari
v. Purushottam Tiwari, reported in 2001 (3) SCC 179. In
light of fact that there is material about propounders playing
role in preparation of Ex.D7, conclusion by first appellate Court
cannot be held to be perverse.
45. Substantial question of law is therefore answered in
affirmative. Consequently, following:
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ORDER
Appeal is dismissed with costs.
Sd/-
(RAVI V. HOSMANI)
JUDGE
Psg/AV/GRD
