Karnataka High Court
Nagaveni W/O.Ramakrishna Hegde vs Urm Shubhalaxmi W/O.Shantaram Hegde ... on 21 January, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2025:KHC-D:1043
RFA No. 992 of 2007
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.992 OF 2007 (DEC/PAR)
BETWEEN:
1. NAGAVENI W/O. RAMAKRISHNA HEGDE,
AGED ABOUT 76 YEARS,
R/O. MANADOOR GRAM,
HAKREMANE, TQ. SIRSI-581401.
2. VENKATRAMAN RAMAKRISHNA HEGDE,
SINCE DECEASED BY HIS LRS,
2A. LALITA W/O. VENKATRAMAN HEGDE,
AGED ABOUT 65 YEARS,
OCC. MEDICAL PRACTITIONER,
R/O. KUMBAR BIDI, SHIVAMOGGA,
DIST. SHIVAMOGGA-577201.
2B. MURALI S/O. VENKATRAMAN HEGDE,
AGED ABOUT 39 YEARS, OCC. PRIVATE JOB,
Digitally signed by
MALLIKARJUN R/O. KUMBAR BIDI, SHIVAMOGGA,
RUDRAYYA DIST. SHIVAMOGGA-577201.
KALMATH
Location: HIGH
...APPELLANTS
COURT OF
KARNATAKA
(BY SRI VISHWANATH HEGDE, ADVOCATE FOR A2 (A AND B)
SRI K.S. PATIL, ADVOCATE FOR A1.)
AND:
UFM SHUBHALAXMI W/O. SHANTRAM HEGDE,
SINCE DECEASED BY HER LRS,
1. RAMAKRISHNA SHANTRAM HEGDE,
SINCE DECEASED BY HIS LRS.
-2-
NC: 2025:KHC-D:1043
RFA No. 992 of 2007
1A. SHASHIKALA W/O. RAMAKRISHNA HEGDE,
AGED ABOUT 56 YEARS, OCC. AGRICULTURE,
R/O. HAKREMANE, PO: SALKANI,
TQ. SIRSI, DIST. UTTARA KANNADA-581402.
1B. SHRUTI D/O. RAMAKRISHNA HEGDE,
AGED ABOUT 25 YEARS, OCC. AGRICULTURE,
R/O. HAKREMANE, PO: SALKANI,
TQ. SIRSI, DIST. UTTARA KANNADA-581402.
2. RAGHAVENDRA SHANTARAM HEGDE,
S/O. SHANTRAM HEGDE,
AGED 41 YEARS,
3. MANJUNATH SHANTRAM HEGDE
S/O. SHANTRAM HEGDE,
SINCE DECEASED BY HIS LR'S
3A. GEETA W/O. MANJUNATH HEGDE,
AGED ABOUT 48 YEARS, OCC. HOUSEHOLD,
R/O. HAKREMANE, TQ. SIRSI,
DIST. UTTARA KANNADA-581403.
3B. SHUBHA D/O. MANJUNATH HEGDE,
AGED ABOUT 21 YEARS, OCC. STUDENT,
R/O. HAKREMANE, TQ. SIRSI,
DIST. UTTARA KANNADA-581403.
3C. SINCHANA D/O. MANJUNATH HEGDE,
AGED ABOUT 17 YEARS, OCC. STUDENT,
R/O. HAKREMANE, TQ. SIRSI,
DIST. UTTARA KANNADA-581403.
3D. SHANTARAM S/O. MANJUNATH HEGDE,
AGED ABOUT 12 YEARS, OCC. STUDENT,
R/O. HAKREMANE, TQ. SIRSI,
DIST. UTTARA KANNADA-581403.
SINCE RESPONDENTS NO.3C AND 3D ARE MINORS
REPRESENTED BY THROUGH NATURAL MOTHER
GUARDIAN
GEETA W/O. MANJUNATH HEGDE,
AGED ABOUT 48 YEARS, OCC. HOUSEHOLD,
R/O. HAKREMANE, TQ. SIRSI,
DIST. UTTARA KANNADA-581403.
-3-
NC: 2025:KHC-D:1043
RFA No. 992 of 2007
4. REKHA W/O. SHARACHANDRA HEGDE,
SINCE DECEASED BY HER LR'S
4A. VENKATRAMAN S/O. SHARACHANDRA HEGDE,
AGED ABOUT 23 YEARS, OCC. AGRICULTURE,
R/O. MENSIKERI, HEEPNALLI,
TQ. SIRSI, DIST. UTTARA KANNADA-581403.
5. RAMAKRISHNA S/O. SHANTARAM HEGDE
S/O. SHANTARAM HEGDE,
AGED ABOUT 40 YEARS,
R/O. HAKREMANE, TQ: SIRSI-581401.
6. RAGHAVENDRA SHANTARAM HEGDE
S/O. SHANTARAM HEGDE,
AGED ABOUT 31 YEARS,
R/O. HAKREMANE, TQ: SIRSI-581401.
7. TIMMAYYA S/O. RAMAKRISHNA HEGDE,
SINCE DECEASED BY HIS LR'S
7A. PADMAVATHI W/O. TIMMAYYA HEGDE,
AGED ABOUT 80 YEARS, OCC. HOUSEHOLD,
R/O. BADAGIGADDE, MANADUR, PO. SALKANI,
DIST. UTTARA KANNADA-581403.
7B. GEETA D/O. TIMMAYYA HEGDE,
AGED ABOUT 60 YEARS, OCC. HOUSEHOLD,
R/O. BADAGIGADDE, MANADUR, PO. SALKANI,
DIST. UTTARA KANNADA-581403.
7C. SUMATHA W/O. NAGAPATI HEGDE,
AGED ABOUT 58 YEARS, OCC. HOUSEHOLD,
R/O. HUTGAR, SIRSI,
DIST. UTTARA KANNADA-581401.
7D. SATYANARAYAN S/O. TIMMAYYA HEGDE,
AGED 55 YEARS, OCC. AGRICULTURE,
R/O. BADAGIGADDE, MANADUR, PO. SALKANI,
DIST. UTTARA KANNADA-581403.
7E. ROOPA W/O. RAGHUPATI HEGDE,
AGED 52 YEARS, OCC. HOUSEHOLD,
R/O. JALABHOOMI, KOLIGAR, PO. SALKANI,
DIST. UTTARA KANNADA-581403.
-4-
NC: 2025:KHC-D:1043
RFA No. 992 of 2007
7F. RESHMA W/O. KRISHNAMURTHY,
AGED 49 YEARS, OCC. HOUSEHOLD,
R/O. HOUSE NO.82, 'DWIJAPRIYA'
'D' BLOCK, SWAMI VIVEKANANDA EXTENSION,
GOPAL EXTENSION, SHIVAMOGGA-577205.
7G. SRINATH S/O. TIMMAYYA HEGDE,
AGED 46 YEARS, OCC. AGRICULTURE,
R/O. BADAGIGADDE, MANADUR, PO: SALKANI,
DIST. UTTARA KANNADA-581403.
8. KESHAVA S/O. RAMAKRISHNA HEGDE
S/O. RAMAKRISHNA HEGDE,
AGED ABOUT 41 YEARS,
BOTH ARE R/O. MANADUR GRAMA,
HAKREMANE, TQ. SIRSI-581401.
9. INDIRA W/O. MOHAN HEGDE,
AGED ABOUT 55 YEARS, OCC. HOUSEHOLD,
R/O. BANDAGADDE, TQ. SIRSI-577401.
10. TARA W/O. PARAMESHWARA BHATT,
AGED ABOUT 53 YEARS, OCC: HOUSEHOLD,
R/O. BHUGARIGADDE, TQ. BHATKAL-581330.
11. SHAMALA W/O. SUBRAMANYA BHAT,
AGED ABOUT 46 YEARS, OCC: HOUSEHOLD,
R/AT. HALAPPA CIRCLE, ASHWONI CLINIC,
BHADRAVATI, SHIVAMOGGA-577301.
12. MANJUNATH S/O. SHANTARAM HEGDE,
S/O. RAMAKRISHNA HEGDE,
AGED ABOUT 38 YEARS,
R/O. MANADOOR GRAM, HAKREMANE,
SIRSI TALUK, U.K.DIST.-581401.
...RESPONDENTS
(BY SRI JEEVAN J.NEERALGI, ADVOCATE FOR R6;
SRI B.V. SOMAPUR, ADVOCATE FOR R9 TO R11;
R1 (DECEASED);
NOTICE TO R1A, R1(B), R2, R3(A), R3(B) ARE SERVED;
(R3 (C AND D) ARE MINOR'S REPRESENTED BY R3(A));
R4-DECEASED;
NOTICE TO R4(A), R5, R7(A), R7(C), R7(D) R7(E), R7(G),
R8 AND R12 ARE SERVED;
R7(B) AND R7(F) HELD SUFFICIENT).
-5-
NC: 2025:KHC-D:1043
RFA No. 992 of 2007
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (SR.DN)
SIRSI, IN O.S.NO.139/1993 DATED 02.02.2007 AND TO ALLOW THIS
APPEAL AND TO DISMISS THE SUIT IN THE INTEREST OF JUSTICE
AND EQUITY AND ETC.,.
THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This Regular First Appeal is filed by the defendants
No.1 and 3 challenging the judgment and decree passed in
O.S.No.139/1993 dated 02.02.2007 by the Court of Civil
Judge (Sr.Dn.), Sirsi.
2. For the purpose of convenience and easy
reference, rank of the parties is referred as per their status
before the trial Court.
Plaintiffs' case:
3. Brief facts of the case of the plaintiffs.
The plaintiffs have filed a suit for declaration to declare
that by virtue of the Will stated to have been executed by
Ramakrishna Hegde dated 26.12.1984, the plaintiffs have
NC: 2025:KHC-D:1043
become the owners of suit schedule 'A' property and also to
declare that alleged Will executed by Ramakrishna Hegde
dated 25.09.1985 in favour of defendant No.1 is illegal, by
playing fraud and under misrepresentation and the
consequential relief restraining the defendants from
interfering with suit schedule 'A' property and also for
partition and separate possession of B, C and D properties to
the extent of 1/8th share to the plaintiffs.
4. It is pleaded that one Ramakrishna Hegde is the
original propositus. He had 1st wife by name Gowri. Husband
of plaintiff No.1 namely Shantharam Hegde and the
defendant No.2 are sons of Ramakrishna Hegde and his 1st
wife Gowri. The defendant No.1 is the 2nd wife of
Ramakrishna Hegde. Defendant Nos.4 to 6 are the children
of Ramakrishna Hegde and defendant No.1. The deceased
Ramakrishna Hegde has obtained the suit properties in the
family partition which took place on 16.01.1978 among his
brothers and parents. Thus, in this way Ramakrishna Hegde
bequeathed the suit schedule properties. The said
Ramakrishna Hegde died on 07.10.1985.
NC: 2025:KHC-D:1043
5. It is the case of the plaintiffs that the deceased
Ramakrishna Hegde has executed a Will dated 26.12.1984
during his lifetime bequeathing suit schedule 'A' property in
favour of his son Shantharam who is husband of plaintiff
No.1 and father of defendants No.2 and 3. Accordingly, the
plaintiff has produced varadi before authorities to mutate the
name in the records and thus, came into possession of suit
schedule 'A' properties by virtue of the same Will. Therefore,
claimed that the plaintiffs have become absolute owners of
the suit schedule properties.
6. It is further pleaded that defendants No.1 and 3
to 7 have created a Will dated 25.09.1985 which is outcome
of fraud and illegal. Therefore, filed the above suit for
declaration and partition.
Case of Defendants:
7. The defendant No.1 has filed written statement
and same has been adopted by defendants No.3 to 7. The
defendants have denied pleadings of the plaintiffs. The
defendants No.1 and 3 to 7 have taken pleading that the
NC: 2025:KHC-D:1043
deceased Ramakrishna Hegde never executed the Will dated
26.12.1984 but has executed the Will dated 25.09.1985 in
favour of defendant No.1 in respect of all the suit schedule
properties. Therefore, prays to dismiss the suit.
8. Upon the pleadings of the parties, the trial Court
has framed following issues:
i. Whether the plaintiff proves the factum and
validity of the suit Will deed dtd: 26.12.1984?
ii. Whether the plaintiff proves that even prior to
the suit will deed dtd: 26.12.1984, suit
schedule 'A' properties are in possession of
herself and her husband?
iii. Whether the plaintiff proves that by virtue of
the suit will deed dtd: 26.12.1984, she became
the absolute owner of suit schedule 'A'
property?
iv. Whether the plaintiff proves that the alleged will
deed dtd: 25.09.1985 is got up and concocted
one and hence it is illegal and void?
v. Whether the plaintiff further proves that
deceased Ramakrishna Hegde was not
physically and mentally competent and he was
under the control of defendants 1 and 3?
vi. Whether the plaintiff proves that in the capacity
of L.R. of deceased Ramakrishna Hegde, she
has got 1/8 share and right in the suit schedule
B, C and D properties?
vii. Whether the plaintiff proves the alleged
interference and obstruction caused by
NC: 2025:KHC-D:1043
defendants 1 and 3 in her possession and
enjoyment of the suit schedule 'A' property?
viii. Whether the defendant No.1 proves the factum
and validity of the alleged Will deed dt:
25.09.1985?
ix. Whether the defendant No.1 proves that he has
got exclusive right over the suit schedule
properties?
x. Whether the defendant No.1 proves that court
fee paid is not proper and sufficient?
xi. Whether the plaintiff is entitle for partition and
separate possession?
xii. If so, what is the share of plaintiff and
defendants, and in which properties?
xiii. What Order or Decree?
9. The plaintiff No.1 is examined as PW-1 and
examined one attesting witness stated to have been
witnessed Will dated 26.12.1984 as PW-2 and got marked
documents as Exs.P-1 to P-18. The defendant No.3 is
examined as DW-1 and one witness stated to have been
witnessed execution of Will dated 25.09.1985 is examined as
DW-2 and got marked documentary evidence as Ex.D1 to
D4.
- 10 -
NC: 2025:KHC-D:1043
Reasoning of Trial Court:
10. The trial Court after appreciating evidence on
record, has decreed the suit of the plaintiffs declaring that
the plaintiffs have become owners of the property by virtue
of Will dated 26.12.1984 and further declared that the Will
dated 25.09.1985 executed in favour of defendant No.1 is
invalid, illegal and outcome of fraud. During pendency of the
suit, plaintiff No.1 died, therefore, her legal heirs have come
on record as plaintiffs No.1(a) to 1(d). The trial Court has
declared that the plaintiffs No.1(c) and 1(d) and plaintiffs
No.2 and 3 and defendant No.8 together are entitled for
1/8th share in the suit schedule 'B' property and defendants
No.1 to 7 are entitled for 1/8th share in the suit schedule 'B'
property. The suit with regard to suit schedule 'C' and 'D'
properties is dismissed. The trial Court assigned the reason
that the plaintiffs proved execution of Will dated 26.12.1984
as per Section 63 of Indian Succession Act and 64 of Indian
Evidence Act and also the trial Court has held that the Will
dated 25.09.1985 is not proved. The trial Court believed the
attesting witness PW-2 in respect of Will dated 26.12.1984
- 11 -
NC: 2025:KHC-D:1043
and disbelieved the other side attesting witness DW-2 in
respect of Will dated 25.09.1985. Thus, in this way, it is held
that the Will dated 26.12.1984 is proved. Therefore, decreed
the suit.
11. Being aggrieved by this, defendant Nos.1 and 3
have preferred the appeal before this Court by raising
various grounds. The defendant Nos.1 and 3 have raised
ground that there is no good relationship between
Ramakrishna Hegde and defendant No.1-her husband.
Ramakrishna Hegde was residing in the house of defendant
No.1 during his last days. Therefore, out of love and
affection, since, defendants No.1 and 3 to 7 were looking
after the deceased, the Will was executed. Further, raised
ground that the deceased had not intended to execute the
Will dated 26.12.1984. Therefore, this Will is created and
concocted. Hence, it is urged that the trial Court has not
appreciated the evidence on record correctly in appreciating
evidence regarding proof of Will. Just because there is
proximity of date of execution of Will and date of death is not
a fact to say that the deceased was not in good state of
- 12 -
NC: 2025:KHC-D:1043
mental health. It is raised ground that the very fact that the
deceased was residing along with defendant No.1 and
defendant No.1 was looking after the deceased itself is a
factor proves that the deceased executed Will dated
25.09.1985 which is not correctly appreciated by the trial
Court. Hence, resulting into erroneous judgment and decree
passed by the trial Court. Hence, prays to allow the appeal
by setting aside the judgment and decree passed by the trial
Court.
12. Heard arguments from both sides and perused
the records. The points that arise for consideration in this
appeal are as follows:
i. Whether, under the facts and circumstances
involved in the case, the plaintiffs prove that
the deceased Ramakrishna Hegde had
executed the Will dated 26.12.1984 in favour
of husband of the plaintiff No.1 by name
Shantharam?
ii. Whether, under the facts and circumstances
involved in the case, the defendants No.1 and
3 to 7 have proved the fact that deceased
Ramakrishna Hegde had executed the Will
dated 25.09.1985 in favour of defendant
No.1?
- 13 -
NC: 2025:KHC-D:1043
iii. Whether the judgment and decree passed by
the trial Court requires interference by this
Court?
Submission of Defendants-Appellants:
13. Learned counsel for the appellants/defendants
No.1 and 3 have argued that the deceased Ramakrishna
Hegde has not executed the Will dated 26.12.1984 during his
last days, the deceased was residing along with defendant
No.1. Therefore, out of love and affection, as he was being
looked after by defendant No.1 and her children, had
executed Will dated 25.09.1985. In this regard, the
appellants/defendants No.1 and 3 have proved the intention
of the testator for executing the Will in favour of the
defendant No.1. But on the contrary, the plaintiffs failed to
prove execution of Will dated 26.12.1984 as the evidence of
the attesting witness PW-2 does not inspire confidence of the
Court in proving the Will.
14. It is further submitted that mere legal compliance
in proving the Will are not sufficient. But the propounder of
the Will has to remove surrounding suspicious
circumstances. But the plaintiffs have failed to remove
- 14 -
NC: 2025:KHC-D:1043
suspicious circumstances even by leading evidence of PW-2
alleged to have witnessed execution of Will, whereas, the
defendant No.1 has proved the execution of Will dated
25.09.1985 by examining attesting witness DW-2 and not
only this, also proved the intention of the testator to
bequeath all the suit schedule property in favour of
defendant No.1. But in this regard, the trial Court has not
appreciated evidence on record correctly. Therefore, prays to
allow the appeal and set aside the judgment and decree
passed by the trial Court.
Submission of Respondents-Plaintiffs:
15. On the other hand, learned counsel for
respondents/plaintiffs justified the judgment and decree
passed by the trial Court. It is argued that though there are
two Wills and both plaintiffs and defendants have examined
their respective attesting witnesses, but the legal compliance
and removal of suspicious circumstances are proved by the
evidence of PW-2 but not by attesting witness DW-2.
Therefore, justified the judgment and decree passed by the
trial Court and prays to dismiss the appeal.
- 15 -
NC: 2025:KHC-D:1043
ANALYSES:
16. There are two Wills, one is dated 26.12.1984
stated to have been executed by Ramakrishna Hegde in
favour of Shantharam as per Ex.P-15. There is another Will
dated 25.09.1985 stated to have been executed by
Ramakrishna Hegde in favour of defendant No.1 as per
Ex.D1. Ramakrishna Hegde died on 07.10.1985. The suit is
for partition of suit schedule A, B, C and D properties. As per
plaintiffs, the testator has executed Will bequeathing 'A'
schedule properties and accordingly prays for declaration in
respect of 'A' schedule properties and sought for partition in
B, C and D properties. It is the case of the defendants No.1
and 3 to 7 that the testator executed Will dated 25.09.1985
and is the last Will as per pleading of the defendants.
17. The Hon'ble Apex Court and this Court in several
decisions have laid down principle of law regarding proving
of the Will which are as follows:
18. The Hon'ble Supreme Court in the case of
H.VENKATACHALA IYENGAR Vs. B. N. THIMMAJAMMA
- 16 -
NC: 2025:KHC-D:1043
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 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
- 17 -
NC: 2025:KHC-D:1043
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 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
- 18 -
NC: 2025:KHC-D:1043
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
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
- 19 -
NC: 2025:KHC-D:1043
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. 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.
19. 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, wherein at Para Nos.21 and 22 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
- 20 -
NC: 2025:KHC-D:1043
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 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
- 21 -
NC: 2025:KHC-D:1043
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 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."
20. 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 reported
in (2001) 7 SCC 503, wherein att Para Nos.1 and 3 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
- 22 -
NC: 2025:KHC-D:1043
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 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
- 23 -
NC: 2025:KHC-D:1043
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 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."
2. xxxx.....xxxx.....xxxx.....
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
- 24 -
NC: 2025:KHC-D:1043
also 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."
21. 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, wherein at Para Nos.23
and 24 it is held 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
- 25 -
NC: 2025:KHC-D:1043
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. 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?"
- 26 -
NC: 2025:KHC-D:1043
22. The word "Will" is defined under Section 2(h)
of The Indian Succession Act, 1925, which reads as
follows:
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)
23. Here there are two Wills in the suit. The plaintiffs
are claiming that Ramakrishna Hegde had executed Will in
favour of his son Shantaram on 26.12.1984 as per Ex.P.15.
Rivalry is, defendants No.1 and 3 are claiming that
Ramakrishna Hegde had executed Will in favour of defendant
No.1 on 25.09.1985 as per Ex.D.1. PW.2 is the attesting
witness to the Will Ex.P.15. DW.2 is the attesting witness to
the Will Ex.D.1. Ramakrishna Hegde died on 07.10.1985.
Upon considering the evidence of PW.2 attesting witness, he
has stated that the testator had already got prepared the
Will and requested PW.2 and other witness to come to the
home and thereafter he read over the Will already prepared
- 27 -
NC: 2025:KHC-D:1043
and after reading over the Will, the testator had put
signature and thereafter PW.2 and other witness have put
their signatures. This is the evidence given by PW.2.
24. Upon considering Ex.P.15 and evidence of PW.2,
there are discrepancies found by making correction by
inserting the figure 5 in the place of 4. Therefore, it is
contended by defendants that the Will is amounting to dated
26.12.1985 and also there are two different inks found on
the last page of the Will Ex.P.15 which is admitted by PW.2
in the evidence. Therefore, considering these discrepancies,
it goes to the core of the case making suspicion on the Will.
25. Furthermore, PW.2 had stated that deceased had
intended to bequeath the property in favour of husband of
plaintiff No.1. But defendant No.1 is the 2nd wife. After death
of the 1st wife, the testator had solemnized the 2nd marriage
with defendant No.1. Defendants No.3 to 7 are also natural
legal heirs and they cannot be treated as illegitimate
children. The marriage of defendant No.1 with the testator
was solemnized after the death of the 1st wife. This fact is
not disputed by the plaintiffs. Therefore, defendants No.3 to
- 28 -
NC: 2025:KHC-D:1043
7 are also considered as natural legal heirs. But in the Will
Ex.P.15, there is no mentioning or any reasons that why the
testator had deprived defendants No.3 to 7 who are also
legal heirs through the 2nd wife.
26. Therefore, considering all these aspects,
execution of Will Ex.P.15 is found to be difficult to accept as
proved one. It is not only the proof of legal requirement as
per section 63 of the Indian Succession Act and as per
section 68 of the Indian Evidence Act, but also found that the
propounder of the Will shall have to remove all suspicious
circumstances. But upon considering as above stated, there
are discrepancies found in mentioning the year whether it is
1984 or 1985 as there is overwritten on the year 1984 by
mentioning the letter as 5 in the place of 4. Also there is
another different thing found in Ex.P.15 Will that the other
legal heirs have not been mentioned why they are deviated.
Therefore, upon consideration of these evidence in this
regard, it is the Will Ex.P.15 found to be suspicious one.
Hence it cannot be said that it is proved one.
- 29 -
NC: 2025:KHC-D:1043
27. Likewise, upon considering Ex.D.1 Will dated
25.09.1985, DW.2 is the attesting witness. DW.2 has stated
that testator executed the Will on 25.09.1985. The testator
died on 07.10.1985 within a span of 12 days from
25.09.1985. Though legal requirement regarding proof of
Will are satisfactorily complied with as contended by the
learned counsel for appellants/defendants, but there are
other circumstances to be considered.
28. From the evidence it is proved that before death
of the testator he was admitted to the hospital and also the
proximity of execution of alleged Will and the date of death
of testator is hardly 12 days. It is also proved that defendant
No.1 at the time of execution of the Will was present, which
proves the active participation of defendant No.1 in making
the Will. Therefore, as discussed above, though the legal
requirements for proving the Will are complied with, but the
propounder of the Will shall have to remove the other
suspicious circumstances. But the defendants have failed to
remove the other suspicious circumstances. Upon
- 30 -
NC: 2025:KHC-D:1043
considering Ex.D.1 Will, and evidence of PW.2, the Will at
Ex.D.1 is also not proved.
29. Therefore, considering the principle of law laid
down by the Hon'ble Supreme Court and by this Court as
above discussed, execution of Will as per Ex.P.15 and Ex.D.1
are not proved. Therefore, the propounder of both Wills have
failed to prove execution of Will. In this regard the finding
given by the trial Court is perverse and thus is liable to be
set aside.
30. Therefore, when in the appeal both Wills are
found to be not proved, stated to have been executed by the
testator, therefore the propounders will not get any benefit
out of those Wills. Hence, if the Wills are taken away, then it
will be considered as the deceased died as intestate.
Admittedly the deceased is the original propositus who had
two wives by name Gouri and defendant No.1 Nagaveni. The
deceased Ramakrishna Hegde married defendant No.1 i.e.,
the 2nd marriage after death of the 1st wife. The husband of
plaintiff No.1 is the son of the propositus Ramakrishna
Hegde. Defendant No.2 and 8 are also sons of Ramakrishna
- 31 -
NC: 2025:KHC-D:1043
Hegde through the 1st wife Gouri. Defendants No.3 to 7 are
children of Ramakrishna Hegde through the 2nd wife
Nagaveni. Therefore, all are entitled for equal share in all the
suit schedule properties. Therefore the suit filed by the
plaintiffs is liable to be decreed for partition. Hence in this
regard the findings given by the trial Court that the plaintiffs
have become owner by virtue of Will Ex.P.15 so far as the
suit schedule properties, is set aside. Hence the plaintiffs and
defendants being the coparceners are entitled for equal
share of 1/8th each in the suit schedule A and B properties.
31. Therefore, the appeal filed by defendants No.1
and 3 is allowed in part. Hence the judgment and decree
passed by the trial Court is liable to be set aside so far as the
relief of declaration granted and confirmed so far as the
parties are entitled for partition. Accordingly I answer point
No.1 and 2 in the negative and point No.3 in the affirmative.
Therefore, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
- 32 -
NC: 2025:KHC-D:1043
ii) The judgment and decree dated 02.02.2007,
passed by the Civil Judge (Sr.Dn.), Sirsi, in O.S.No.139/1993
is set aside so far as declaring that the plaintiffs are absolute
owners of the suit schedule properties by virtue of the Will
dated 26.12.1984 and confirmed so far as the relief of
partition is granted.
iii) The plaintiffs and defendants being coparceners
are equally entitled for 1/8th share each in all the suit
schedule properties.
iv) No order as to costs.
v) Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
RKM-para 1 to 22.
MRK-para 23 to end.
CT: UMD.
