2. Brief facts as stated are that appellant was plaintiff
Properties' for short), etc.
3. In plaint, it was stated Ningegowda - propositus had
Javaregowda and Nanjegowda (plaintiff's husband). It was
belonging to joint family. It was stated as Ramegouda had
share in suit properties. It was stated, after death of
properties with his sons defendants no.2 and 3. As plaintiff did
not intend to continue in joint family, she demanded partition.
When, defendant no.1 kept postponing it, suit was filed.
4. Upon appearance, defendants filed written statement
issueless. They however, categorically denied existence of
adoption. They stated after death of Ningegowda, only
5. It was stated, after said partition, defendant no.1
had purchased several items i.e. item no.12 of suit property
item no.7 under sale deed dated 14.04.1953. It was therefore
defendant no.1. It was stated during his lifetime, Nanjegowda
04.02.1945. It was also stated, since death of Nanjegowda on
of properties. It was further stated, defendants had divided
dated 20.09.1976 and were enjoying respective shares.
6. In view of above, it was stated, plaintiff did not have
was shrouded by suspicious circumstances. It was alleged,
mind and that alleged Will was created to grab suit properties.
On above grounds sought dismissal of suit.
7. Based on pleadings, trial Court framed following
2. Whether the plaintiff proves that the 1st
defendant, Hindu undivided family at the time of
the date of her husband?
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3. Whether the plaintiff proves that the suit
schedule properties were the joint family
properties?
4. Whether the defendants prove that the 1st
defendant and the husband of the plaintiff got
the properties divided in the presence of the
panchaitdars and in that respect, palupatti was
also drawn on 04.02.1945?
5. Whether the defendants prove that the husband
of the plaintiff has bequeathed the properties
which have fallen to his share which have been
palupatti dated 04.02.1945, in favour of the 3rd
defendant, through a Will?
6. Whether the suit is not maintainable?
7. Whether the court fee paid is sufficient?
8. To what relief is any are the parties entitled?
ADDITIONAL ISSUES
1. Whether the defendant proves that late
Nanjegowda brother of 1st defendant and
husband of the plaintiff has executed the
registered will dated 18-9-1970 and bequeathed
all his properties fallen to his share in favour of
3rd defendant and deceased Lakshmamma has
no right to execute the alleged will dated 15-4-
1987?
2. Whether the defendants prove the will dated 15-
4-1987 executed by deceased Lakshmamma is
forged and got up one averred in para 4 of the
additional written statement?
3. Whether the defendant proved legal heirs of
Lakshmamma is necessary party to the suit and
as such suit is not maintainable?
4. Whether the defendant proves that the
defendants partitioned as per the registered
partition deed dated 20-9-1976 and enjoying the
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properties as averred in para of the Addl. written
statement?
8. On behalf of plaintiff, four witnesses as PWs 1 to 4
were examined and Exs.P1 to P24 got marked. In rebuttal,
defendant no.3 and three others were examined as DWs.1 to 4
and Exs.D1 to D33 were got marked.
9. On consideration, trial Court answered issues no.1 to
3, 6, additional issues no.2 and 3 in negative; issues no.4, 5, 7,
additional issue no.1 and additional issue no.4 in affirmative
and issue no.8 by dismissing suit.
10. Aggrieved, plaintiff filed RA no.126/2002 on various
grounds. Based on same, first appellate Court framed following
points:
1. Whether the Trial Court went wrong in holding
that there was a partition in the joint family
consisting the deceased 1st defendant & husband
of the plaintiff deceased Nanjegowda as per the
palupatti dated 04.02.1945 - Ex.D.33?
2. Whether the Trial Court went wrong in holding
that defendants have proved that deceased
Nanjegowda husband of the deceased original
plaintiff - Lakshmamma had executed the will
date 18.09.1970 in favour of the 3rd defendant
Lakshmegowda as per Ex.D.1 and bequeathed all
the properties fallen to his share in favour of
deceased 3rd defendant Lakshmegowda ?
3. Whether the Trial Court went wrong in holding
that D.T. Rangegowda S/o Thimmegowda had a
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right to prosecute the suit as the legal
representative of the deceased plaintiff
Lakshmamma?
4. Whether the impugned Judgment & Decree of the
Trial Court calls for interference?
5. What Order or Decree?
11. On consideration, it answered points no.1 to 4 in
negative and point no.5 by dismissing appeal. Hence, plaintiff
had filed this appeal.
12. Sri HNM Prasad, learned counsel for plaintiff
submitted appeal was by plaintiff against concurrent erroneous
findings in suit for partition and separate possession. It was
submitted, Ningegowda - propositus had three children namely
Rangegowda, Nanjegowda and Javaregowda. After death of
propositus, his children were in joint possession and enjoyment
of suit properties. Admittedly, Rangegowda went in adoption.
Therefore, on death of Nanjegowda, plaintiff as his sole legal
heir was entitled for half share in suit properties. Claiming
same, suit was filed. It was submitted during pendency of suit,
plaintiff died by executing Will and bequeathing her share in
suit properties in favour of DT Rangegowda. Hence, he was
impleaded as legal representative of plaintiff, in suit.
NC: 2025:KHC:528
13. It was submitted, though defendants contended suit
properties were already partitioned as per panchayat palupatti,
no proper distribution of share to Nanjegowda. However,
relationship as well as nature of properties was not disputed.
Since, prima facie, though it appear about creation of alleged
Will at Ex.D1 to deprive share of plaintiff, both Courts failed to
appreciate said fact and erred in concurrently dismissing suit
without assigning share in suit properties by decreeing suit.
14. It was submitted, after death of Ningegowda there
was partition between Javaregowda and Nanjegowda, as per
panchayath palupatti dated 04.02.1945. Though unregistered,
it was marked as Ex.D33 for collateral purpose. It was
submitted, as plaintiff and Nanjegowda were issueless, for
performance of death ceremonies, Nanjegowda had bequeathed
properties allotted to him under palupatti, to defendant no.3,
under Ex.D1 - Registered Will dated 16.09.1970 is disputed.
15. Thereafter, under registered partition deed dated
20.09.1976 all properties were further divided amongst
defendants with mutation of revenue records in year 1981. It
was submitted, in written statement, defendants stated Will
dated 16.09.1970 was acted upon during life time of testator.
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It was submitted, bequeathal of all properties allegedly allotted
to Nanjegowda under panchayat palupatti, in favour of
defendant no.3 was suspicious. It was submitted, Ex.D1 was
shrouded in following suspicious circumstances:
a. The Will has been acted upon during the life time
of testator could be seen from para 5 and 6 of
the written statement.
b. The properties in the alleged Will were also
included in the partition deed dated 20.09.1976
marked as Ex.D32 i.e., during the life time of
Nanjegowda.
c. Disinheritance of the plaintiff and no share is
allotted to her by husband.
d. Similar pencil mark reflected in Ex.D1 and D33.
e. Cramped/insertions writings in the Will just
above the thumb impression of Nanjegowda.
f. The scribe of the Will was no more. His son
identified his father's signature.
g. Only attesting witness is one Hucchegowda he is
examined as DW.3 and it is alleged that he has
impersonated in the proceedings and he is not
attester. When this was discovered and brought
to the notice of the 1st appellate Court vide para
12 of the judgment. The 1 appellate Court holds
that this was canvassed for the 1 time and it is
was not contended before the trial Court and not
canvassed before the trial Court. In the absence
of certified copy or original register from the
office of Sub-Registrar it cannot be held as
tampered document. The 1 appellate Court acted
with material irregularity in throwing burden on
the plaintiff rather than the propounder of the
Will. Hence, the approaches of the Courts are
erroneous.
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16. It was submitted, both Courts erred in holding Ex.D1
- Will as proved by referring to Section 90 of Indian Evidence
Act, contrary to following ratio laid down in case of Ashutosh
Samanta v. Ranjan Bala Dasi, reported in 2023 SCC OnLine
SC 255:
"13 .......Wills cannot be proved only on the basis
of their age the presumption under Section 90 as
to the regularity of documents more than 30
years of age is inapplicable when it come to proof
of Wills".
17. It was submitted, there was improper consideration
of suspicious circumstances by both Courts by relying on
decision of Hon'ble Supreme Court, in case of Kavita Kanwar
v. Pamela Mehta, reported in (2021) 11 SCC 209, wherein it
was held:
"15.1. As regards the objection of Respondent 2
that the property in question was an ancestral
property, the trial court referred to the decision
of this Court in Chiranjilal Shrilal Goenka v. Jasjit
Singh [Chiranjilal Shrilal Goenka v. Jasjit Singh,
(1993) 2 SCC 507] and held that the said
objection would not be entertained because the
"question of right, title, share and ownership is
not to be decided in the probate proceedings".
The trial court also found that the testatrix was
of sound mind at the time of execution of the
will, particularly when she was handling her own
affairs including bank account and property; was
leading a very active life till her death; and was
also attending club and driving her own car.
24.8. We need not multiply the references to all
and other decisions cited at the Bar, which
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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 [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
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
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suspicions 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 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 abovenoted 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.
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12.8. The test of satisfaction of the judicial
conscience comes into operation when a
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."
28. There is no doubt that any of the factors
taken into account by the trial court and the High
Court, by itself and standing alone, cannot
operate against the validity of the propounded
will. That is to say that, the will in question
cannot be viewed with suspicion only because the
appellant had played an active role in execution
thereof though she is the major beneficiary; or
only because the respondents were not included
in the process of execution of the will; or only
because of unequal distribution of assets; or only
because there is want of clarity about the
construction to be carried out by the appellant;
or only because one of the attesting witnesses
being acquaintance of the appellant; or only
because there is no evidence as to who drafted
the printed part of the will and the note for
writing the opening and concluding passages by
the testatrix in her own hand; or only because
there is some discrepancy in the oral evidence
led by the appellant; or only because of any
other factor taken into account by the courts or
relied upon by the respondents. The relevant
consideration would be about the quality and
nature of each of these factors and then, the
cumulative effect and impact of all of them upon
making of the will with free agency of the
testatrix. In other words, an individual factor
may not be decisive but, if after taking all the
factors together, conscience of the court is not
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satisfied that the will in question truly represents
the last wish and propositions of the testator, the
will cannot get the approval of the court; and,
other way round, if on a holistic view of the
matter, the court feels satisfied that the
document propounded as will indeed signifies the
last free wish and desire of the testator and is
duly executed in accordance with law, the will
shall not be disapproved merely for one doubtful
circumstance here or another factor there."
18. It was submitted Will would always come into effect
after death of testator, unlike as contended by defendants that
Ex.D1 was acted upon during life time of testator. It was
submitted, such contention itself was a suspicious
circumstance. In support of submission he relied on decision in
case of Ghanshyam v. Yogendra Rathi, reported in (2023)
7 SCC 361.
19. It was lastly contended, judgment and decree passed
by first appellate Court was not in conformity with Order XLI
Rule 31 of CPC, and ratio laid down in B.V. Nagesh v. H.V.
Sreenivasa Murthy, reported in (2010) 13 SCC 530, as
follows:
"4. The appellate court has jurisdiction to reverse
or affirm the findings of the trial court. The first
appeal is a valuable right of the parties and
unless restricted by law, the whole case is
therein open for rehearing both on questions of
fact and law. The judgment of the appellate court
must, therefore, reflect its conscious application
of mind and record findings supported by
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reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties
for decision of the appellate court. Sitting as a
court of first appeal, it was the duty of the High
Court to deal with all the issues and the evidence
led by the parties before recording its findings.
The first appeal is a valuable right and the
parties have a right to be heard both on
questions of law and on facts and the judgment
in the first appeal must address itself to all the
issues of law and fact and decide it by giving
reasons in support of the findings. (Vide Santosh
Hazari v. Purushottam Tiwari [(2001) 3 SCC 179:
JT (2001) 2 SCC 407], SCC p.188, para 15
and Madhukar v. Sangram [(2001) 4 SCC 756],
SCC p.758, para 5)."
20. On above grounds sought for answering substantial
questions of law in favour of appellants and allow appeal.
21. None appeared for respondents.
22. It is seen, Appeal was dismissed against respondent
no.2 as abated vide order dated 05.06.2024 and dismissed
against respondent no.3 (g) vide order dated 29.08.2024. But,
estate of respondent no.2 is substantially represented by
presence of his father Javaregowda - defendant no.1. Likewise
on death of Lakshmegowda - defendant no.3, legal
representatives are brought on record. All others, except
respondent no.3 (g) are served and represented. Thus, as per
ratio in Shivshankara v. H.P. Vedavyasa Char, reported in
(2023) 13 SCC 1, appeal would not abate.
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23. Appeal was admitted on 07.10.2009 to consider
substantial questions of law as in memorandum of appeal,
which are as follows:
1. Whether the courts below have not erred in
law in relying upon exhibits-D-33 i.e.,
palupatti dated 4/2/1945 and recording a
finding that there was partition in the family
of the parties when admittedly the said
document was admitted for only a collateral
purpose?
2. Whether the courts below are justified in law
in coming to the conclusion that exhibits D-1
will dated 16/9/1970 has been proved even
though the person who had attested the will
and the person who deposed before the court
below i.e., DW.3 are entirely different?
3. Whether the judgment and decree passed by
the Courts below are not vitiated on account
of fraud played by the respondents by
impersonating the attester to Exhibit D-1?
4. Whether the Trial Court had not committed an
error in law in coming to the conclusion that
"it is an admitted fact that both deceased
Nanjegowda and Javaregowda were continued
in a joint family till alleged palupatti dated
4/2/1945 even though it is not the case of the
appellant at any stage of proceeding and
there being no such admission?
24. From above, it is seen plaintiffs' claim for partition
stems from assertion that her husband Nanjegowda and his
brothers Rangegowda and Jawaregowda were children of
propositus Ningegowda, that Rangegowda went in adoption
therefore joint family continued with only two brothers and due
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to death of Nanjegowda issueless, plaintiff-his widow was
entitled for his share in joint family properties.
25. Same is denied by defendants on ground that
during his lifetime of Nanjegowda, after Rangegowda went in
adoption, there was partition between Jawaregowda and
Nanjegowda as per Ex.D.33 - Pancyahath palupatti dated
04.02.1945. As Nanjegowda was issueless, he executed Ex.D.1
- Will bequeathing all properties received by him under Ex.D.33
- Panchayath palupatti, in favour of defendant no.3. And in
terms of Will, defendants were in possession of properties.
They had thereafter included said properties in further partition
between themselves as reflected by separate entries in revenue
records. They also claim, several items of properties included in
suit schedule were self acquired properties of defendants.
26. Defendants also opposed continuation of suit by
legatee under Ex.P.1 - Will dated 15.04.1987, on ground that
bequeathal by Nanjegowda under Ex.D1 in favour of defendant
no.3 had already taken effect, thereby divesting plaintiff of right
to bequeath. They alleged Will suffered from suspicious
circumstances. After evaluating same, trial Court answered
additional issue no.2 holding Ex.P1 as proved. Said finding is
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not challenged. In fact, no point for consideration was framed
by first appellate Court.
27. However, dismissal of suit by trial Court hinges
entirely on its finding about Ex.D1 - Will. While giving finding
on issues no.5 and additional issue no.1, trial Court took note
of grounds on which plaintiff questioned Ex.D1 - Will, namely,
dis-inheriting plaintiff who was wife of testator, registration of
Will on next day after its execution, pencil marks and delay in
acting on it.
28. It found recital by testator that in case of his death
prior to his wife, legatee was under obligation to maintain her,
to be sufficient. It also observed, execution of Will in every case
was intended to interfere with natural succession. Insofar as
discrepancy in deposition of DW.3 about date of registration of
Ex.D1, it observed witness was aged 77 years while deposing in
respect of an event that occurred more than 30 years earlier.
Taking note of similarity in pencil marks on Ex.D1 and Ex.D33,
it accepted explanation that they were made by registering
authorities. Insofar as delay in staking claim under Will, trial
Court chose to overlook same on ground that Testator died on
25.11.1985 and suit was filed on 17.03.1987, i.e. shortly after
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death of Nanjegowda, when plaintiff moved from house of
defendants to house of her legatee.
29. Referring to admission by PW.2 - Krishnegowda
that he was aware about execution of Will by Nanjegowda in
favour of Lakshmegowda as well as admission by PW-4
Rangegowda that on death of Nanjegowda, Lakshmegowda had
tonsured his head, which according to trial Court would
corroborate claim of defendants that defendant no.3 had acted
in terms of intention of testator. It also noted plaintiff had not
made any allegation against her husband testator about dis-
inheritance being due to any ill-will, to hold that no suspicious
circumstance was substantiated. It observed as compliance
with requirements of Section 63 of Indian Succession Act, 1925
and Section 68 of Indian Evidence Act, 1872 and suspicious
circumstances were duly explained, it held Ex.D1 duly proved.
30. In appeal, first appellate Court took note of grounds
urged in Appeal, framed points for consideration and passed
impugned judgment and decree concurring with findings of trial
Court after independent assessment and assigning reasons.
Bare perusal of points framed for consideration would reveal
application of mind to grounds urged. Hence, it is held
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contention about first appellate Court not complying with Order
XLI Rule 31 of CPC while passing impugned judgment and
decree would not stand substantiated.
31. Insofar as first substantial question of law that
Ex.D33 was marked for collateral purposes, therefore finding of
both Courts about partition between Nanjegowda and
Jawaregowda was perverse, it is seen both Courts took note of
fact that it was marked only for collateral purpose namely to
substantiate severance of joint family status. But, admittedly
plaintiff was wife of Nanjegowda and could not have claimed
separate/independent share than her husband during his life
time. Such right would arise only after death of her husband.
Admittedly, Ex.D1 was executed by her husband during his
lifetime, when he was absolute owner. Merely on ground that
bequeathal was to take effect after his death, and plaintiff who
was next in line of succession was dis-inherited, would not be
sufficient to upset claim under validly executed and duly proved
Will.
32. This Court in case of Thabagouda Satteppa
Umarani v. Satteppa, reported in 2014 SCC OnLine Kar
12028, held:
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"13. The co-sharer namely the husband/father,
mother and wife have sought for ⅛th share as
held by both the Courts below. So far as the
Bombay School of Mitakshara Law, in similar
circumstances, it is enunciated referring to
provision of Hindu Law and recently upon
amendment of 2005, by the Bombay High Court
in the case of Jayamati Narendra Shah
(Deceased By L.Rs.) v. Narendra Amritlal
Shah [AIR 2014 Bombay 119] , that wife cannot
demand partition of joint family property, she
would get a share only if partition is demanded
by her husband or sons and property is actually
partitioned. However, as an exception it has been
said that widow can demand for a partition which
her deceased husband was entitled to. Further
what has been explained in paras 11, 12, 13, 14
and 19 of the judgment is, in a Hindu undivided
family only sons and brothers laterally would
constitute a coparcenary in ajoint Hindu Family;
their wives may be members of the joint Hindu
family but are not co-parceners. The proprietary
rights are of a co-parcener if the joint Hindu
family owns any property. The wives of co-
parceners do not get any interest in the joint
property owned and held by co-parceners who
are co-owners.
14. To clarify this position here it is to be noted
that co-parcener refers to a male issue i.e., may
be a father or a son. The wives of co-owners do
not get any interest by virtue of their marriage.
It is only a Hindu widow who gets the interest of
her husband in the co-parcenary or in the joint
family property upon the death of her husband.
That interest enables her to claim maintenance
and residence. Only a widow can demand
partition of the interest which her deceased
husband would have been entitled to.
Consequently, a wife has no share, right title or
interest in the Hindu Undivided Family in which
her husband is a co-parcener with his brothers,
father or sons and after the amendment of
Section 6 of the Hindu Succession Act, 2005 with
his sisters and daughters also. The wife, may be
a member of a joint Hindu Family, but by virtue
of being a member in the joint Hindu Family she
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cannot get any share, right, title or interest in
the joint Hindu Family property which that family
owns. A wife cannot demand for partition unlike a
daughter. She would get a share only if partition
is demanded by her husband or sons and the
property is actually partitioned. The claim by a
wife during lifetime of the husband in the share
and interest which has as a co-parcener in his
Hindu Undivided Family is wholly premature and
completely misconceived.
15. This position clarifies that though the wife is
entitled for interest i.e., share, it is to be along
with her husband. Any such decision being taken
by both the Courts below earmarking separate
share for herself and one share in the share of
her husband cannot in any way is recognized.
Even the decision of the Apex Court in the noted
decision in Shir Omani, is also not enabling the
wife to have an independent share."
33. Both, second and third substantial questions of law
are about an imposter being examined as DW-3 attester of
Ex.D1 and consequently judgment and decree passed by both
Courts being vitiated by fraud. But, such contention was not
urged in first appeal and therefore, cannot be permitted to be
urged for first time in second appeal.
34. Lastly observation by trial Court that continuation of
Nanjegowda and Jawaregowda in joint family was admitted was
without any basis, it is held above that plaintiff did not have
right in respect of suit properties during life time of her
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husband and that her husband Nanjegowda had right to
bequeath properties received by him in partition.
35. In view of above, none of substantial questions of
law would arise for consideration. Consequently, following:
ORDER
Appeal is dismissed with costs.
SD/-
(RAVI V HOSMANI)
JUDGE
PSG/GRD/EM
CT:PA
