Karnataka High Court
Sharada W/O Basanagouda Patil vs Shivagangawwa W/O Siddappa Yallur on 15 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100079 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.100079 OF 2015 (PAR)
BETWEEN:
1. SMT. SHARADA W/O. BASANAGOUDA PATIL,
SINCE DECEASED REP. BY HER L.RS.
APPELLANTS NO.2, 3 AND 4.
2. SHRI SHIDDANAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: WADARATTI-591307,
TQ: GOKAK, DIST: BELAGAVI.
3. SHRI CHANDRASHEKARAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: TIMMAPUR P.G.-591136,
TQ: GOKAK, DIST: BELAGAVI.
4. SHRI VASANTAGOUDA
S/O. BASANAGOUDA PATIL,
AGE: 48 YEARS, OCC: AGRICULTURE,
Digitally signed R/O: TIMMAPUR P.G.-591136,
by MANJANNA E TQ: GOKAK, DIST: BELAGAVI.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA (BY SRI SANJAY S.KATAGERI, ADVOCATE FOR A2 TO A4
(A2 TO A4 ARE TREATED AS LR'S OF A1 V/O
DATED 11.04.2023))
AND:
1. SMT. SHIVAGANGAWWA
W/O. SIDDAPPA YALLUR,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O: TAPASHI-591101, TQ: GOKAK,
DIST: BELAGAVI.
2. SHRI BHIMAGOUDA
S/O. SIDDHAGOUDA PATIL,
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RFA No. 100079 of 2015
SINCE DECEASED BY HIS L.RS
RESPONDENTS NO.2(A TO D).
2(A) SMT. SHANTA
W/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 53 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
2(B) VANITA
D/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 38 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
2(C) SIDDANGOUDA
S/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 36 YEARS, OCC. AGRICULTURE,
2(D) LAXMI
D/O. BHIMANAGOUDA BIRADAR PATIL,
AGE. 30 YEARS,
OCC. HOUSEHOLD, WORK AND AGRICULTURE,
ALL THE RESPONDENTS NO.2(A), 2(B) ARE NOW
RESIDING AT
C/O. KIRAN V.PATIL,
PLOT NO.1942, SECTOR NO.9,
NEAR SAI MANDIR, ANJANEYA NAGAR, BELAGAVI,
PINCODE-590016.
...RESPONDENTS
(BY SRI P.G. NAIK, ADVOCATE FOR R1;
R2 DECEASED V/O DATED 19.11.2024
R2(A), R2(B), R2(C) AND R2(D)-NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND
DECREE DATED 29.11.2014 IN O.S. NO.323/2007 PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE, GOKAK, BE KINDLY SET ASIDE, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY DISMISSING THE
SUIT IN O.S. NO.323/2007 WITH COST, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100079 of 2015
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed by defendant Nos.1 to 4 in the
suit, challenging the judgment and decree dated
29.11.2014, passed in O.S.No.323/2007, by the Court of
I Additional Senior Civil Judge, Gokak, whereby the suit
filed for partition is decreed and the plaintiff is granted
1/3rd share in all the suit schedule properties except in suit
schedule item Nos.5 and 6.
2. The plaintiff has filed a suit for partition
claiming 1/3rd share in all the suit properties. It is not
disputed that one Siddanagouda is the original propositus.
Kashawwa is wife of Siddanagouda. Both Siddanagouda
and Kashawwa had three children namely, Basanagouda,
Shivagangawwa and Bhimagouda. Plaintiff is daughter of
Siddanagouda and Kashawwa and defendant No.1 is wife
of Basanagouda and defendant Nos.2 to 4 are children of
defendant No.1 and Basanagouda. By stating that the suit
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properties are ancestral and joint family properties, the
plaintiffs filed suit for partition.
3. The defendant Nos.1 and 3 to 5 have filed
written statement and opposed the suit. The defendant
No.2 has not filed written statement. It is the defence
pleaded in the written statement that after demise of
Siddanagouda and Kashawwa, they inherited the suit
property as it was tenancy lands inherited through her
mother. The said Kashawwa had executed registered Will
dated 29.11.2006 bequeathing the plaint 'A' schedule
properties in favour of husband of defendant No.1 and
defendant No.5. Therefore, it is not amenable for partition.
4. After filing written statement by the defendant
Nos.1 and 3 to 5, the plaintiff got amended the plaint by
raising specific contention that after the death of
propositus, since the children were all minor, the suit
properties were all mutated in the name of Kashawwa and
since the said properties are not the self-acquired
properties of Kashawwa, she had no right to execute the
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Will, though the said properties were all standing in her
name. Therefore, pleaded by questioning the competence
of Kashawwa to execute Will and also pleaded that the Will
is created and concocted as the said Kashawwa was old
aged and was not in a sound disposing state of mind so as
to bequeath the suit properties.
5. The trial Court upon completion of the
pleadings, has framed the following issues:
i. Whether the plaintiff proves that the suit
properties are ancestral joint family properties
of the plaintiff and defendants?
ii. Whether the defendants prove that the suit
properties which are situated at KODLIWAD
village within the jurisdiction of Soundatti
taluka (i.e., item Nos.1 to 4 of the plaint 'A'
schedule properties) are the self acquired
properties of Kashawwa @ Mannawwa?
iii. Whether the defendants prove that
Smt. Kashawwa @ Mannawwa executed a
registered Will deed dated 29.04.2006 in
respect of all the items of the plaint "A"
schedule properties, infavour of the fifth
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defendant, on her own free will and wish when
she was in sound disposing state of mind?
iv. Whether the court fee paid is insufficient?
v. To what share the parties are entitled?
vi. What decree or order?
6. The plaintiff has got examined herself as PW-1
and got examined two witnesses as PWs-2 and 3 and
produced document as Exs.P-1 to P-20. The defendant
No.1 herself is examined as DW-1 and other witnesses as
DWs-2 to 6 and got marked documents as Exs.D-1 to
D-18.
7. Upon appreciating the evidence on record, the
trial Court has decreed the suit by granting 1/3rd share to
the plaintiff in all the suit properties except in suit
schedule item Nos.5 and 6. Likewise, defendant No.5 is
entitled to 1/3rd share and defendant No.1 to 4 together
entitled to 1/3rd share in all the suit properties except in
suit schedule item Nos.5 and 6. Further, declared that the
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plaintiff and defendants are having an undivided right in
item Nos.5 and 6 of the suit properties.
8. The trial Court has assigned reasons that the
defendants have failed to prove due execution of Will
dated 29.11.2006 and found that there are various
suspicious circumstances regarding the Will. Therefore,
disbelieved the evidence of the attesting witness DW-2
and also the evidence of DW6-Doctor. He had stated that
Kashawwa was in sound state of mind. Therefore, by
disbelieving the Will, has partitioned the suit schedule
properties by decreeing the suit.
and 4 have preferred the regular appeal by raising various
grounds. The ground urged in that, Kashawwa had
executed Will in favour of husband of defendant Nos.1
and 5 and therefore, suit schedule 'A' properties are not
amenable for partition.
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10. Learned counsel for the appellants argued that
the defendants have proved execution of Will by adducing
evidence of attesting witness DW-2 and also proved the
fact of Kashawwa that she was in sound state of mind by
examining the Doctor-DW6. But these evidence are not
appreciated properly by the trial Court. Therefore, argued
that execution of Will is proved. Hence, prays to dismiss
the suit by setting aside the judgment and decree passed
by the trial Court.
11. Learned counsel for appellants in support of his
arguments placed reliance on the judgment of Supreme
Court in the case of Daulat Ram Vs Sodha and Others,
reported in (2005) SC 233 (Daulat Ram Case).
12. On the other hand, learned counsel for
respondents/plaintiffs justified the judgment and decree
passed by the trial Court and thus prays to dismiss the
appeal.
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13. Upon hearing the submissions of both sides, the
points that arise for my consideration are as follows:
i. Whether, under the facts and circumstances
involved in the case, the defendant Nos.1
to 5 prove that Kashawwa has executed
registered Will dated 29.11.2006 by
bequeathing plaint 'A' schedule properties in
favour of deceased Basanagouda (husband
of defendant No.1) and defendant No.5?
ii. Whether, the judgment and decree passed
by the trial Court requires interference by
this Court?
14. The plaintiffs filed a suit for partition and
separate possession claiming 1/3rd share in all the suit
schedule properties by pleading that the suit schedule
properties are ancestral and joint family properties.
15. In the counter claim, it is the case of the
defendants that Kashawwa wife of Sidddanagouda had
executed registered Will dated 29.11.2006 bequeathing
the plaint and ancestral properties in favour of husband of
defendant Nos.1 and 5. There is no evidence by the
defendants that regarding Kashawwa had competency to
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execute the Will in respect of the entire plaint 'A' schedule
property. Admittedly, the schedule properties are tenanted
lands, Kashawwa's mother was granted occupancy rights
and after her death, Kashawwa inherited the suit
properties. Therefore, Kashawwa did not have absolute
right over the suit properties. When this being the fact,
the question arises regarding competency of execution of
Will by Kashawwa bequeathing entire property to male
coparceners only, leaving the plaintiff who is the daughter.
Ex.D-6 is the registered Will. Siddanagouda and Kashawwa
had three children. The plaintiff is the daughter, husband
of defendant No.1 namely, Basanagouda and defendant
No.5 namely, Bhimagouda are sons. There is no stipulation
as to why Kashawwa had excluded the daughter in
bequeathing property only to sons. The plaintiff being
daughter was excluded in the Will. This is revealed from
Ex.D-6-Will.
16. DW-2 is one of the attesting witness. There is
specific issue regarding proving of Will by the defendants.
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The defendants are claiming that Kashawwa had executed
the Will. Therefore, it is burden on the defendants to prove
execution of Will as per principles of law laid down by the
Hon'ble Apex Court in catena of decisions, few of them
were to extract as under:
17. The Hon'ble Supreme Court in the judgment of
H. VENKATACHALA IYENGAR APPELLANT Vs. B. N.
THIMMAJAMMA AND OTHERS reported in AIR 1959 SC
443 at Para Nos.18, 19, 20 and 21 stipulates as under:
"18. 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, reference must inevitably be made to the
statutory provisions which govern the proof of
documents. Sections 67 and 68 of the 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
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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. 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 provision. 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 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
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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 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
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testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
accepted as the last will of the testator. The presence
of such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is
true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect 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
above referre to 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
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English courts often mention the test of the
satisfaction of judicial conscience. The test merely
emphasizes 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 satisfied that it
had been validly executed by the testator who is no
longer alive.
18. Further, I place reliance on the judgment of
Hon'ble Supreme Court in the case of JAGADISH CHAND
SHARMA Vs. NARIAN SINGH SAINI (DEAD)
THROUGH LEGAL REPRESENTATIVES AND OTHERS
reported in (2015) 8 SCC 612 at Para Nos.21 and 22
wherein it is held as under:
"21. As would be evident from the contents of
Section 63 of the Act that to execute the will as
contemplated therein, the testator would have to sign
or affix his mark to it or the same has to be signed by
some other person in his presence and on his
direction. Further, the signature or mark of the
testator or the signature of the person signing for him
has to be so placed that it would appear that it was
intended thereby to give effect to the writing as will.
The section further mandates that the will shall have
to be attested by two or more witnesses each of
whom has seen the testator sign or affix his mark to it
or has seen some other persons sign it, in the
presence and on the direction of the testator, or has
received from the testator, personal acknowledgment
of a signature or mark, or the signature of such other
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persons and that each of the witnesses has signed the
will in the presence of the testator. It is, however,
clarified that it would not be necessary that more than
one witness be present at the same time and that no
particular form of attestation would be necessary.
22. It cannot be gainsaid that the above
legislatively prescribed essentials of a valid execution
and attestation of a will under the Act are mandatory
in nature, so much so that any failure or deficiency in
adherence thereto would be at the pain of invalidation
of such document/instrument of disposition of
property.
22.1. In the evidentiary context Section 68 of
the 1872 Act enjoins that if a document is required by
law to be attested, it would not be used as evidence
unless one attesting witness, at least, if alive, and is
subject to the process of the court and capable of
giving evidence proves its execution. The proviso
attached to this section relaxes this requirement in
case of a document, not being a will, but has been
registered in accordance with the provisions of the
Registration Act, 1908 unless its execution by the
person by whom it purports to have been executed, is
specifically denied.
22.2. These statutory provisions, thus, make it
incumbent for a document required by law to be
attested to have its execution proved by at least one
of the attesting witnesses, if alive, and is subject to
the process of the court conducting the proceedings
involved and is capable of giving evidence. This rigour
is, however, eased in case of a document also
required to be attested but not a will, if the same has
been registered in accordance with the provisions of
the Registration Act, 1908 unless the execution of this
document by the person said to have executed it
denies the same. In any view of the matter, however,
the relaxation extended by the proviso is of no avail
qua a will. The proof of a will to be admissible in
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evidence with probative potential, being a document
required by law to be attested by two witnesses,
would necessarily need proof of its execution through
at least one of the attesting witnesses, if alive, and
subject to the process of the court concerned and is
capable of giving evidence."
19. Further, I place reliance on the judgment of
Hon'ble Apex Court in the case of N. KAMALAM (DEAD)
AND ANOTHER Vs. AYYASAMY AND ANOTHER
wherein it is held as under:
"1. The Latin expressions onus probandi and
animo attestandi are the two basic features in the
matter of the civil court's exercise of testamentary
jurisdiction. Whereas onus probandi lies in every case
upon the party propounding a will, the expression
animo attestandi means and implies animus to attest:
to put it differently and in common parlance, it means
intent to attest. As regards the latter maxim, the
attesting witness must subscribe with the intent that
the subscription of the signature made stands by way
of a complete attestation of the will and the evidence
is admissible to show whether such was the intention
or not (see in this context Theobald on Wills, 12th
Edn., p. 129). This Court in the case of Girja Datt
Singh v. Gangotri Datt Singh [AIR 1955 SC 346] held
that two persons who had identified the testator at the
time of registration of the will and had appended their
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signatures at the foot of the endorsement by the Sub-
Registrar, were not attesting witnesses as their
signatures were not put animo attestandi. In an earlier
decision of the Calcutta High Court in Abinash Chandra
Bidyanidhi Bhattacharya v. Dasarath Malo [ILR (1929)
56 Cal 598 : AIR 1929 Cal 123] it was held that a
person who had put his name under the word "scribe"
was not an attesting witness as he had put his
signature only for the purpose of authenticating that
he was a "scribe". In a similar vein, the Privy Council
in Shiam Sundar Singh v. Jagannath Singh [54 MLJ 43
: AIR 1927 PC 248] held that the legatees who had put
their signatures on the will in token of their consent to
its execution were not attesting witnesses and were
not disqualified from taking as legatees. In this
context, reference may be made to the decision of this
Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata
Sastri & Sons [(1969) 1 SCC 573 : (1969) 3 SCR 513]
wherein this Court upon reference to Section 3 of the
Transfer of Property Act has the following to state:
(AIR p. 1151, para 8)
"It is to be noticed that the word 'attested', the
thing to be defined, occurs as part of the definition
itself. To attest is to bear witness to a fact. Briefly put,
the essential conditions of a valid attestation under
Section 3 are: (1) two or more witnesses have seen
the executant sign the instrument or have received
from him a personal acknowledgement of his
signature; (2) with a view to attest or to bear witness
to this fact each of them has signed the instrument in
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the presence of the executant. It is essential that the
witness should have put his signature animo
attestandi, that is, for the purpose of attesting that he
has seen the executant sign or has received from him
a personal acknowledgement of his signature. If a
person puts his signature on the document for some
other purpose, e.g., to certify that he is a scribe or an
identifier or a registering officer, he is not an attesting
witness."
3. Turning on to the former expression onus
probandi, it is now a fairly well-settled principle that
the same lies in every case upon the party
propounding the will and may satisfy the court's
conscience that the instrument as propounded is the
last will of a free and capable testator, meaning
thereby obviously, that the testator at the time when
he subscribed his signature on to the will had a sound
and disposing state of mind and memory and
ordinarily, however, the onus is discharged as regards
the due execution of the will if the propounder leads
evidence to show that the will bears the signature and
mark of the testator and that the will is duly attested.
This attestation however, shall have to be in
accordance with Section 68 of the Evidence Act which
requires that if a document is required by law to be
attested, it shall not be used as evidence until at least
one attesting witness has been called for the purpose
of proving its execution and the same is so however,
in the event of there being an attesting witness alive
and capable of giving the evidence. The law is also
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equally well settled that in the event of there being
circumstances surrounding the execution of the will
shrouded in suspicion, it is the duty paramount on the
part of the propounder to remove that suspicion by
leading satisfactory evidence."
20. Further, I place reliance on the judgment of this
Court in the case of SRI. J. T. SURAPPA AND ANOTHER
Vs. SRI SATCHIDHANANDENDRA SARASWATHI
SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS
reported in ILR 2008 KAR 2115 at Para Nos.23 and 24,
which are extracted as under:
"23. There is one important feature which
distinguishes wills from other documents. It is one of
the most solemn document known to law. Through it,
a dead man entrusts to the living, the carrying out of
his wishes. As it is impossible, that he can be called
either to deny his signature or to explain the
circumstances in which it was made, it is essential
that trust worthy and effectual evidence should be
given to establish the Will. Therefore, unlike other
documents, the Will speaks from the death of the
testator. It is ambulatory and it becomes effective and
irrevocable on the death of the testator. It is a
declaration in the prescribed manner of the intention
of the person making it, with regard to the matters
which he wishes to take effect upon or after his death.
Therefore, 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
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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. However, in the case of Wills, apart from
proof of the documents, additional factors have to be
satisfied, before the court could declare a document
styled as "Will" is proved.
24. Therefore, the court has to tread a careful
path in the enquiry to be conducted with regard to
Will. The said path consists of five steps
"PANCHAPADI". The path of enquiry and steps to be
traversed are as under:--
(1) Whether the Will bears the signature or
mark of the testator and is duly attested by two
witnesses and whether any attesting witness is
examined to prove the Will?
(2) Whether the natural heirs have been
disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state of
mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist
surrounding the execution of the Will?
(5) Whether the Will has been executed in
accordance with Section 63 of the Indian Succession
Act, 1925, read with Section 68 of the Evidence Act?"
21. The word "Will" is defined under Section 2(h)
of The Indian Succession Act, 1925 which reads as
follows:
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Section 2(h) in The Indian Succession
Act, 1925
"Will" means the legal declaration of the
intention of a testator with respect to his
property which he desires to be carried into effect
after his death.
(emphasis supplied by me)
22. The plaintiffs by getting amendment of the
plaint, after filing written statement by the defendants,
pleaded that the alleged Will is created and concocted one.
Therefore, fundamentally it is burden on the defendants to
prove execution of Will, thereafter the burden on the
plaintiffs to prove the Will is created and fabricated one.
Therefore, it is burden of the propounder to prove
execution of the Will. Ex.D-6 is the registered Will. DW-2
is an advocate and attesting witness to the Will. It is his
evidence that two days prior to the execution of Will in
question, Kashawwa came to the office and requested to
prepare a Will in respect of her self-acquired properties in
favour of her sons only as the relationship between herself
and plaintiff became strained. Further, DW-2 suggested
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Kashawwa to get herself tested by a qualified doctor.
Further stated that on 29.11.2006 Smt. Kashawwa along
with two witnesses came to his office and doctor had
stated in the presence of Smt.Kashawwa, himself and
attesting witnesses that Kashawwa is in a sound state of
mind. Therefore, as per instruction given by
Smt.Kashawwa, he has noted down the points and
certified Will in question. Thereafter, the Will was
handed over to Kashawwa and after understanding the
same, Kashawwa had put her left hand thumb impression
and thereafter, witnesses have put their signature.
23. In cross examination of DW-2, it is revealed
that he is not treated doctor to test Kashawwa physically
regarding her health condition. DW-2 admitted in the
cross-examination that DW6-doctor had telephoned to the
DW-2. Further, admitted that DW-2 attesting witness and
DW-6-doctor have not met each other before execution of
Will. Therefore, it is admitted fact that at the time of
alleged execution of Will, Kashawwa was about 80 years
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old aged women. When evidence of DW-2 attesting
witness is perused, he has stated that he had seen the
DW-6 doctor who examined Kashawwa in his presence
physically and told DW-2 that Kashawwa was in a sound
state of mind, but the admissions in cross-examination
proved different things as above stated which is correctly
appreciated by the trial Court.
24. DW-6 is the doctor, he had stated in evidence
that on 29.11.2006, he had tested Kashawwa in his clinic
and issued certificate in this regard but as per evidence of
DW-2, DW-5 and the attesting witness Kashawwa is
holding medical certificate issued by DW-6 two days prior
to the date of execution of the Will-Ex.D-6. This shows the
active participation of the propounder of the Will. It was
not possible for Kashawwa to go to DW-2 and bring DW-4
and 5 witnesses and also going to the doctor for getting
certificate alone. Therefore, all the suggestions in the
evidence revealed to prove that there was active
participation of propounder of the Will.
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25. DW-5 is another attesting witness to Ex.D-6-
Will. DW-5 has given evidence as per version of DW-2 and
narrated the depositions to patch up the discrepancies
found in the cross examination of DW-2. Therefore, when
the evidence of DW-2, 5 and 6 are considered, there are
various discrepancies found and proved to be the whole
transaction is in unnatural way regarding the Will. DW-5
had stated that Kashawwa herself has given certificate. It
is unbelievable for the reason that Kashawwa was old age
lady of 80 years old and it is unbelievable fact that she
went to DW-2 scribe and advocate and DW-5 attesting
witness requesting him to act as attesting witness and
DW6-doctor. Unless Kashawwa is accompanied by
defendants, she could not do all these things alone. DW-2
and DW-6 are advocate and doctor respectively. The
discrepancies found in their evidence cannot be ignored or
brushed aside out rightly that there may be many
discrepancies due to rustic nature of the witnesses. But
DW-2 and DW-6 are advocate and doctor and therefore,
the differences and discrepancies found in this regard as
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above discussed are major one going to the very root of
the issue regarding proving execution of Will. This is
rightly considered by the trial Court.
26. DW-2 is advocate and the doctor/DW-6 attesting
witness is the resident of the locality nearby the police
station, where the sons of Kashawwa have resided. Further,
Kashawwa was residing with her sons, who were working in
the Police Department. DW-5 attesting witness is running
transport business as it is revealed from his evidence, DW-2
being propounder of the Will and DW-3 is attesting witness
and DW-6 doctor are residing in the same locality. When
DW-5 attesting is running transport business, then, it is
presumed that having close relationship with the police as
sons of Kashawwa who were working in Police Department.
Therefore, there are many chances of creating the Will.
27. Further, DW-1 who is defendant No.1 stated that
Kashawwa had attacked with paralysis stroke to her left body
prior to three years before execution of the Will. Therefore,
when Kashawwa was suffering from paralysis attack to left
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side of her body, then, it was not possible for herself to go
the DW-2, DW-5 and DW-6 with regard to execution of will.
When in the course of cross examination DW-2 and DW-3, it
is revealed their ignorance regarding health condition of
Kashawwa, when the left side body of the Kashawwa was
attacked by paralysis stroke which can be easily seen, under
these circumstances, it is unbelievable fact that Kashawwa
herself went to DW-2 and DW-6 and requested for execution
of will. Therefore, this proves active participation of
propounder of Will/Ex.D-6 in this regard. The Trial Court has
appreciated evidence on record and disbelieved execution of
Will. In this way, the plaintiff has proved that the alleged Will
is created and concocted one. The trial Court in this regard
has appreciated evidence on record correctly and came to
conclusion that there are various suspicious circumstances,
which reveal about execution of Will and at the same time it
is proved that the Will is created and concocted one.
28. Further, the defendants being propounder of Will
have not proved that Kashawwa had intended to bequeath
the property. Proving her intention is mental in nature and it
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can be proved by circumstantial evidence, but that is not
proved by the defendants. The plaintiff was excluded from
bequeathing the property. There is no reason as to why the
plaintiff was excluded except showing that the relationship of
Kashawwa and the plaintiff was strained. Therefore,
considering all these aspects, the Trial Court is correct in
rejecting the case of the defendants that the Kashawwa had
executed the Will.
29. Admittedly the suit schedule 'A' property is not
the exclusive property of Kashawwa. Therefore with regard
to competency also Kashawwa had no right to bequeath
property entirely to her sons. All these aspects have been
considered rightly by the Trial Court and by rejecting the
case of the defendants has decreed the suit, which is found
to be perfectly justified, legal and correct one. While
discussing the above, the ratio laid down in Daulat Rao
Case (supra) is also considered in this case.
30. The defendants have failed to prove the Will
beyond suspicious circumstances and at the same time the
plaintiff has proved that the alleged Will is created and
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concocted one. Therefore, I answer point Nos.1 and 2 in the
Negative. Hence, the appeal is found to be devoid of merits.
Thus it is liable to be dismissed.
31. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is dismissed.
ii) The judgment and decree dated 29.11.2014
passed in O.S.No.323/2007 by the I Additional
Senior Civil Judge, Gokak, is hereby confirmed.
iii) No order as to costs.
iv) Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
RKM:Para 1 to 25
SRA: Para 26 to end
