Karnataka High Court
G B Nagappa vs Siddagangamma on 25 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 3940 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 3940 OF 2025 (GM-CPC)
BETWEEN:
G.B. NAGAPPA
S/ O BASAPPA
AGED ABOUT 74 YEARS,
R/O DODDALAGATTA VILLAGE,
HIREGUNTANURU HOBLI,
CHITRADURGA TALUK AND DISTRICT - 577 501.
...PETITIONER
(BY SRI. SPOORTHY HEGDE N, ADVOCATE)
AND:
1. SIDDAGANGAMMA
W/O PARAMESHWARAPPA,
AGED ABOUT 66 YEARS,
R/O MUTTURGADAURU, HOLALKERE TALUK,
Digitally signed by
NAGAVENI CHITRADURGA DISTRICT - 577 526.
Location: High
Court of Karnataka
2. SUNANDAMMA
W/O SIDDAPPA,
AGED ABOUT 61 YEARS,
R/O HANUAMANAHALLY,
BHARAMASANDRA HOBLI,
CHITRADURGA TALUK AND DISTRICT - 577 501.
3. MEENAKSHAMMA
D/O LATE BASAPPA,
AGED ABOUT 57 YEARS,
R/O DODDALAGATTA VILLAGE,
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HEREGUNTANURU HOBLI,
CHITRADURGA TALUK,
AND DISTRICT - 577 501.
4. SHARADAMMA
D/O LATE BASAPPA,
AGED ABOUT 55 YEARS,
R/O DODDALAGATTA VILLAGE,
HIREGUNTANURU,
CHITRADURGA TALUK,
AND DISTRICT - 577 501.
...RESPONDENTS
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE FOR R3 AND R4;
VIDE ORDER DATED 21.07.2025, NOTICE TO R1 AND R2 IS
DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN FDPNO. 7/14 ON THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC, CHITRADURGA AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an
order dated 13.04.2023 passed by the concerned Court in FDP
No.7/2014.
2. Heard Shri Spoorthy Hegde N., learned counsel
appearing for the petitioner and Shri A.V. Gangadharappa,
learned counsel appearing for respondents No.3 and 4.
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3. Facts in brief germane are as follows:
The petitioner is the defendant and the respondents are
the plaintiffs. The plaintiffs institute a suit in O.S.No.32/1991
seeking partition and separate possession. The suit comes to be
decreed and aggrieved by the said decree, the defendant prefer
RA.No.90/1994. The said appeal comes to be dismissed and
reaches this Court in RSA.No.529/2003. Another appeal is also
filed in RSA.No.1417/2005, which also comes to be disposed.
On the said judgment and decree, final decree proceedings in
FDP No.7/2014 is instituted. After the death of one
Gangamma, the plaintiffs in O.S.No.32/1991, the petitioner
files I.A.No.9 under Order XX Rule 18 read with Section 151 of
the Code of Civil Procedure, 1908 ('the CPC' for short) seeking
to modify the preliminary decree declaring that the petitioner
herein is entitled to 1/5th share of deceased Gangamma in the
suit schedule properties. Objections are filed. The respondents
also filed an application in I.A.No.10 under Order XX Rule 18 of
the CPC seeking altering the preliminary decree and allotting
the share of Gangamma to respondent Nos.3 and 4. Both the
applications come to be dismissed. Aggrieved by the dismissal
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of the applications, the aggrieved prefer RA.No.25/2023, which
also comes to be dismissed by the impugned order. Therefore,
the petitioner is before this Court in the subject petition.
4. The learned counsel appearing for the petitioner
would contend that the deceased Gangamma had executed a
Will dated 07.05.2016, bequeathing her share to respondent
Nos.3 and 4, is the finding rendered by the concerned Court,
which is erroneous, as the share of deceased Gangamma has to
be allotted only after modifying the preliminary decree so
drawn. The learned counsel would further contend that the
concerned Court has misread and misinterpreted the answer
elucidated in the cross examination and therefore, the order
impugned dated 13.04.2023 is to be set at naught.
5. Per contra, learned counsel appearing for the
respondents would vehemently refute the submissions in
contending that the concerned Court has appropriately passed
the order, which cannot be found fault with. The petitioner was
asked to prove that the Will has been executed on 07.05.2016,
bequeathing her share to petitioners Nos.4 and 5 in FDP
No.7/2014 and grounds were made to modify the preliminary
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decree, as claimed by the applicants. The concerned Court by
reasoned order has held that the execution of the Will has been
proved by cogent evidence and accordingly, orders partial
modification of the preliminary decree. He would submit that
this was called in question before the First Appellate Court and
the First Appellate Court also has affirmed the finding.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the available material on record.
7. The afore-narrated facts are not in dispute. The link
in the chain of events are a matter of record. Institution of the
final decree proceedings after the matters were closed, at the
hands of this Court is again a matter of record. During the
proceedings i.e., the Final decree proceedings, Gangamma
dies. Gangamma is the original plaintiff in O.S.No.32/1991 and
was the appellant before this Court. The applications are filed
seeking modification of the preliminary decree allotting the
share of Gangamma to petitioner Nos.4 and 5 before the Final
Decree Court. The concerned Court based upon the affidavits
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and objections, frames the following issues and answers them
accordingly:
"8. Considering the affidavits and objections of
both the parties and considering that, both the parties
have advanced their arguments and evidence in respect
of execution of Will, the materials on record shows that
both the petitioners No.2 and 5 and respondent had
knowledge about the will and the contentions taken by
both the parties. Hence, by making the said observations
and considering the materials on record, the following
points arise for consideration of this Court:
1. Whether the petitioners No.2 to 5 prove
that the petitioner No.1 has executed dated:
07.05.2016 bequeathing her share to
petitioner No.4 and 5? Will
2. Whether the petitioners No.2 to 5 and
respondent have made out sufficient grounds
to modify the preliminary Decree as claimed
in their respective applications?
3. What Order?
9. On behalf of the petitioner No.2 to 5, the
petitioner No.4 got examined herself as P.W.1 and have
got examined one witness by name Siddappa as P.W.2
and have got marked B documents as Ex.P.1 to 8 and
closed their side. On the other nand, G.P.A. Holder of the
respondent by name Anantharaju has got examined
himself as R.W.1 and got marked one document as Ex.
R.1 and closed his side.
10. Heard arguments of petitioners and
respondent. Perused the materials on record.
11. My findings to the above points are as follows
for the reasons stated hereunder:
Point No.1: Affirmative
Point No.2: Partly affirmative
Point No.3: As per final Orders.
for the following:
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REASONS
12. Reasons for point No.1: On going through
the averments of the I.A.No.9 and 10 and the objections
filed to the said applications, in the present case,
Judgment and Decree passed in O.S.No.32/1991,
R.A.No.90/1994, R.S.A.No.1417/2005 and R.S.A.No.
1451/2005 are admitted and that, decrees passed in the
said cases are not denied by both the parties. Further, it
is also admitted by both the parties that, in the Decree
passed by the Hon'ble High Court of Karnataka in
Regular second Appeal share has been allotted to the
petitioner No.1 and that, it is also not in dispute in
respect of death of petitioner No.1 and relationship
between the petitioners and respondent.
13. The petitioner No.2 to 5 claims that deceased
petitioner No.1 has executed will in favour of petitioner
No.4 and 5 bequeathing her share as allotted by the
Decree passed in Regular Second Appeal. On the other
hand, respondent has denied execution of the Will. The
petitioner No.2 to 5 in order to prove the execution of
the Will got examined petitioner No.4 as P.W.1.
14. P.W.1 during her examination in chief has
deposed about Judgment and Decree passed in original
suit, regular appeal and regular second appeals and the
shares allotted to them and has submitted that,
petitioner No.1 died on 24.01.2017 and that, she has
executed will dated: 07.05.2016 bequeathing her share
to petitioner No.4 and 5.
15. The petitioners in support of their case, have
produced decree passed in O.S.No.32/1991 as Ex.P.1,
decree passed in R.A.No.90/1994 as Ex.P.2, Decree
passed in R.S.A.No.1412/2005 and R.S.A.No.1451/2005
as Ex.P.3. As discussed above, there is no dispute in
respect of relationship and the Ex.P.1 to P.3.
16. The petitioners No.2 to 5 in order to prove
execution of Will have produced the said Will dated:
07.05.2016 as Ex.P.8 by P.W.2 and in support of their
contentions, petitioner No.2 to 5 have produced election
I.D. card of the petitioner No.1 as Ex.P4, Aadhar card of
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the petitioner No.1 as Ex.P.5, ration card of the
petitioner No.1 as Ex.P.6 and final rituals veneration card
as Ex.P.7. Further, the petitioners in support of their
contentions, got examined attesting witness of Ex.P.8 by
name siddappa as P.W.2 and he has deposed in favour of
petitioner No.2 to 5 and has stated that, deceased
petitioner No.1 has executed will in his presence.
17. As per Section 63 of Indian Succession Act,
Will must contain signature or mark of testator and that,
the said will has to be attested by two or more witnesses
and that, the said will has to be proved as per Section 68
of Indian Evidence Act and that. Section 68 of Indian
Evidence Act says that, will has to be proved by
examining one of the attesting witness of the Will.
18. On perusing Ex.P.8, it shows thumb
impression of the deceased petitioner No.1 and that, the
said will has been attested by three attesting witnesses
and that, the petitioners to prove the execution of Will
have examined attesting witness of Ex.P.8 as P.W.2 and
he has identified his signature and has deposed in favour
of the petitioner No.2 to 5. Hence, petitioners have
fulfilled the legal requirements in respect of proving the
will.
19. On the other hand, respondent in order to
show that the said will is created and it is surrounded by
suspicious circumstances and that, the said will is not
executed by deceased petitioner No.1 has cross
examined P.W.1 and P.W.2 in length. P.W.1 during her
cross examination has admitted that, petitioner No.1 was
admitted to Davanagere hospital and also admitted that
she used to come to Court with help of others and she
has also admitted that, petitioner No.1 had got equal
love on all her children and that, in the year 2016, her
mother has not left their village. On the other hand,
P.W.2 during his cross examination has deposed that,
petitioner No.1 alone came in the bus and also admitted
that petitioner No.1 was hospitalized at Davanagere and
has deposed that, he has signed at one place in the said
will. Hence, on going through the evidence of P.W.1 and
2, it shows that petitioner No.1 was admitted to the
hospital as cow has pounded upon the petitioner No.1
and that, evidence of P.W.1 shows that petitioner No.1
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was not able to walk alone. But, nothing is elucidated
from the mouth of P.W.1 and 2 to show that, petitioner
No.1 was suffering from unsound mind or any diseases
or she had any mental illness and was not in state of
mind to execute the will. Further, the respondent has
also not produced any documents which shows that
petitioner No.1 did not had mental capacity to execute
the Will. Hence, considering the oral evidence of P.W.1
and 2 and in the absence of any documentary evidence
in respect of mental disability/illness of petitioner No.1 to
execute the Will, inference is drawn in favour of
petitioners that, at the time of executing the will,
petitioner No.1 was not suffering from any mental illness
and she possessed sound mind to execute the Will.
20. Further, the contradiction in the evidence of
P.W.1 and 2, in respect of petitioner No.1 traveling alone
to execute the Will the P.W.2 has deposed that,
petitioner No.1 alone came in bus and when he saw
petitioner No.1 she was alone and that, petitioner No.1
was present in the office of Sub-Registrar before he
reached the office of Sub-registrar. Hence, on
considering the entire evidence of P.W.2, it shows that
petitioner No.1 was alone when P.W.2 saw her and that,
the evidence of P.W.2 do not show that, petitioner No.1
has not traveled with any other persons. Hence, the
evidence of P.W.2 that petitioner No.1 alone came to
Sub-Registrar office will not disprove or create any
suspicion upon the execution of the Will.
21. Further, P.W.2 has clearly deposed that, he,
petitioner No.1 and other witnesses have signed the will.
The evidence of P.W.2 fulfilled the requirements of
Section 63 of Indian Succession Act and Section 68 of
Indian Evidence Act to prove the execution of the Will. In
order to prove the execution of Will, it is not necessary
that, witness must know the contents of the will and
that, as per Section 63 of Indian Succession Act and
Section 68 of Indian Evidence Act, attesting witness has
to depose that testator has marked his signature in his
presence and that, P.W.2 has deposed the same. Though
P.W.2 was cross examined in length, nothing is
elucidated from the mouth of P.W.2 to disbelieve his
evidence regarding execution of the Will by the petitioner
No.1. Further, in respect of timings of presenting the
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will, P.W.2 has not admitted that will was presented at
12.45 p.m. and that, to the suggestion of presenting the
will at 12.45 p.m., the P.W.2 has stated that, it might
have been produced at 12.45 p.m. Hence, the said
deposition of the P.W.2 regarding timings for presenting
the will for registration will not create suspicion around
the Will.
22. The Advocate for respondent has argued that,
P.W.2 Ex.P.8 contains signatures of P.W.2 at two places
and that, P.W.2 has deposed that, he has signed at only
one place, whereas the deposed that, he has signed at
last, but his signature is found at first place and it
creates suspicion around the Will. In respect of said
argument, the Will was executed in the year 2016 and
that, P.W.2 was cross examined in the year 2022 and
that, in general memory of a person fades due to
passage of time and that, after certain time, there will be
less information about the past. Hence, considering the
date of execution of will and the date of cross
examination of P.W.2. the contradiction in number and
place of signatures of P.W.2 in Ex.P.8 and other minor
contradictions will not create suspicion around the Will.
23. Further, the respondent in order to prove his
case got examined his G.P.A. Holder as R.W.1 and he
deposed that, will has been created and that, petitioner
No.1 was aged about 84 years and was not able to travel
alone and she did not had physical and mental capacity
to execute the will and that, there was enmity between
the respondent and the attesting witness by name
Siddappa, who is examined as P.W.2 and that, said
Siddappa by colluding with the petitioner No.2 to 4 and
other witnesses have created the will.
24. The petitioners have cross examined R.W.1 in
length and that, the respondent during his cross
examination has admitted that, photo of a person
present in Ex.P.8 is petitioner No.1. Further, R.W.1 also
admitted that, petitioner No.1 used to affix her thumb
impression and he has also admitted that, he has not
performed final ritual veneration of petitioner No,1.
Further, the respondent admits that, documents
pertaining to the petitioner No.1 are with the petitioners.
Hence, by cross examining the R.W.1, the petitioners
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have proved that, the Will contains photo of the
petitioner No.1 and have also proved that, petitioner
No.1 used to execute documents by affixing her thumb
impression. Hence, the admission of R.W.1 regarding the
photo of the petitioner No.1 supports the contentions of
the petitioner No.4 and 5 regarding execution of will by
petitioner No.1.
25. Further, the respondent has taken contention
that, as there was enmity between him and the attesting
witness P.W.2, he has deposed falsely before the Court.
In respect of enmity between him and P.W.2, the
respondent alleged that, they have given complaint
against P.W.2, but the respondent has not produced the
said complaint and has also not produced any
documentary evidence or examined any other witness to
prove that there is enmity between him and P.W.2.
Hence, in the absence of any materials to show that
there is enmity between him and P.W.2 and hence,
P.W.2 is deposing falsely before the Court adverse
inference is drawn against the respondent.
26. Further, the respondent has submitted that, he
has taken care of deceased petitioner No.1, but the
respondent has not produced any documents in support
of his case. On the other hand, petitioners have
produced election I.D. card, ration card final ritual
veneration card and Aadhar card of the petitioner No.1
and that ration card produced by the petitioners at
Ex.P.6 shows that petitioner No.1 was residing with the
petitioner No.4 and 5 and that, Ex. P.7- final ritual
veneration card clearly shows that, it is the petitioner
No.4 and 5 who have performed final ritual veneration of
the deceased petitioner No.1. Though the respondent
has taken contention that, he has looked after the
petitioner No.1 and taken care of the petitioner No.1,
there are no materials placed before the Court by the
respondent in support of his contentions. Hence, adverse
inference is drawn against the respondent. On the other
hand, Ex.P.4 to 7 produced by the petitioners shows that
the petitioner No.1 was residing with the petitioner No.4
and 5 and they have taken care of petitioner No.1.
27. The Advocate for the respondent has argued
that, P.W.1 has admitted that petitioner No.1 had equal
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love to all his children. When such being the case,
executing the will by excluding the respondent and other
petitioners creates suspicion about the execution of will
by the petitioner No.1. In this regard, on going through
the contents of the will produced at Ex.P.8, it shows that
petitioner No.1 has executed will in favour of the
petitioner No.4 and 5 as they were unmarried and have
taken care of petitioner No.1 and that, petitioner No.1
has bequeathed her share to the petitioner No.4 and 5 to
meet expenses of the litigation and to clear loan
borrowed by her.
28, Considering the reasons assigned in the Will
for executing the same in favour of the petitioner No.4
and 5, as stated above, petitioner No.1 along with
petitioner No.2 to 5 have filed O.S.No.32/1991 and that,
the respondent has denied the rights of the petitioner
No.1 and has contested the matter upto High Court and
that, from 1991 till death of the petitioner No.1, the
respondent has not allowed the petitioner No.1 to take
her share in the suit properties. This itself shows that the
respondent was opposing the petitioner No.1 to enjoy
her share. Hence, exclusion of respondent from the Will
by petitioner No.1 do not create any suspicion on the
Will. Further, considering the cost of litigation from trial
Court to High Court and the present proceedings and
considering that the will was executed in order to meet
the legal litigation expenses appears to be genuine
reason to exclude the respondent from the Will.
29. Further, the said Will shows that as the
petitioner No.4 and 5 have taken care of petitioner No.1,
she has executed Will in favour of the petitioner No.4
and 5 and as stated above, election I.D. card, Aadhar
card, ration card and final ritual veneration card show
that the petitioner No.4 and 5 have taken care of the
petitioner No.1, hence considering the recitals of the Will
and considering the documentary evidence and oral
evidence of petitioners and respondent and considering
that, from 1991 till the death of petitioner No.1, there
was litigation between the petitioners and the
respondent, exclusion of the respondent from Will cannot
be considered as suspicious circumstance. Hence, the
Will is not surrounded by any suspicious circumstance.
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Further, the petitioner No.2 and 3 who are also excluded
from Will have not challenged the Will for excluding them
and that, they have supported the contentions of the
petitioner No.4 and 5.
30. Further, the Advocate for the respondent
argued that if the petitioner No.1 was intending to
bequeath her share to the petitioner No.4 and 5. she
would have appeared before the Court and have made
application, but the petitioner No.1 has not filed any
application before the Court. Hence, it creates doubt in
the execution of the Will. In respect of said contention
purpose of execution of Will itself shows that petitioner
No.1 was intending to give her share to the petitioner
No.4 and 5 and that, wills are executed to show intention
of testator with respect to their property which they
desire to be carried into effect after their death. Hence,
failure of the petitioner No.1 to appear before the Court
and file application to show her intention will not create
suspicion about the execution of will. On the other hand,
if at all the respondent has taken care of the petitioner
No.1, the respondent would at the time of filing
O.S.No.32/1991 itself have submitted no objection to
allot share to the petitioner No.1, but the respondent has
contested the matter for more than 30 years and not
allowed petitioner No.1 to enjoy her property during her
life time. This itself shows that the respondent did not
had good relationship with the petitioner No.1 and when
the respondent himself has contested the case for
allotting share to the petitioner No.1, exclusion of the
respondent from the Will do not create any suspicion on
the execution of the will.
31. The Advocate for respondent has argued that,
as per admission of P.W.2 in para No.4, he was not
present at the time of testator and other witnesses
putting their signature to the Will. Considering the said
argument, the relevant deposition of P.W.2 is reproduced
herewith:
Para No.4: " ಾನು ಪತ ೆ ಸ ಾ ದ
ಸಮಯದ ಉ ದವ ೆಲ ಾಗೂ ಗಂಗಮ ಕೂಡ ಸ
ಾ ದರು."
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The above deposition of P.W.2 shows that while he
signing the will, the testator and other witnesses have
signed the Will and that, the said deposition does not
shows that P.W.2 was not present at the time testator
and other witnesses signed the Will. Hence, the
argument of Advocate for respondent does not hold any
water.
32. Further, the Advocate for respondent has
argued that, there is contradiction in the evidence of
P.W.1 in respect of date of finding the Will and that,
P.W.1 during her examination in chief has stated that,
Will was traced on 25.06.2018 and during cross
examination, has deposed that, after one week from the
date of death of petitioner No.1, they have found the
Will. Hence, there is suspicion surrounding the Will. In
respect of said contention, the Ex.P.8 is a registered
document and that, it was registered on 07.05.2016
during the life time of petitioner No.1. Considering the
said aspect, the contradiction in the evidence of P.W.1
regarding the date on which they found the Will do not
create any suspicion. If at all the Will was unregistered
document, the time when the Will came to light might
have created suspicion. Whereas, the Will in question
produced a Ex.P.8 is a registered document and that, in
contains photo of petitioner No.1. Hence, the difference
in the date of finding the Will and also the delay in filing
the present application do not create any suspicion on
the Will.
33. Further, the Advocate for respondent has
argued that, P.W.1 has admitted that, the brother of
P.W.2 has given evidence in their favour in the original
suit. Hence, the said admission shows that P.W.2 and
petitioner No.4 and 5 by colluding with each other, have
created the Will. On going through the said deposition of
P.W.1, it shows that, the P.W.2 and his brother were
acquainted with the petitioners and that, the brother of
P.W.2 has supported the petitioners and that, the said
admission shows that petitioner No.1 who was plaintiff in
original suit was also known to the P.W.2 and that, the
said evidence does not create suspicion around the Will.
On the other hand, it shows that the Will has been
attested by a person who is acquainted with the
petitioner No.1.
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34. The Advocate for respondent has argued that,
petitioner No.1 was aged about more than 80 years at
the time of execution of Will and that, petitioner No.1
died within eight months from the date of execution of
the Will. Hence, considering the age of petitioner No.1, it
creates suspicion around the Will. The said argument
does not hold any water, as a person who is near to his
death and who is at old age ususually execute the Will
and that, it is normal for a old aged person to execute
the Will and on the other hand, if a person of young age
execute the Will, it creates suspicion, as it is not normal
for a young person to execute the Will. Further, the
respondent has not brought anything on record to show
that petitioner No.1 died because of any illness and that,
there are absolutely no materials placed before the Court
by the respondent to show inability of petitioner No.1 to
execute the Will. Hence, the age of petitioner No.1 at the
time of executing the Will and the death of petitioner
No.1 within eight months after executing the Will do not
create any suspicion around the Will.
35. The Advocate for petitioner has relied upon the
following decision:
(1) In case of Maddineni Koteswara Rao Vs.
Maddineni Bhaskara Rao & another, in Civil
Appeal No.3233 dated: 05.05.2009. of 2009,
(ii) In case of Smt. Janaki Vs. Smt.Lalitha
and others, reported in 2015(5) KCCR 455.
(iii) Smt.Cheekanda Pushparatna Chengappa
Vs. Mr.Kodandera K. Sudhakar and others,
reported in 2016(5) KCCR 1593.
The above said three judgments says that even
after passing preliminary Decree, the said preliminary
Decree can be modified and that, another preliminary
Decree can be passed and that, there is no need of filing
separate suit for modifying the preliminary decree.
Considering the said decisions, in the present case the
applications filed by both the petitioners and respondent
are entertained to modify the preliminary Decree.
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36. The Advocate for respondent has relied upon
the decision in case of Sri J.T.Surappa and another Vs.
Sri Satchidhananadendra Saraswathi Swamiji Public
Charitable Trust and others, reported in 2008(3) KCCR
1484. Wherein the Hon'ble High Court of Karnataka, at
para No.24 has held as
"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 "PANCHA PADI". 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?.
36.1. Considering the said decision, in respect of
first test, the Will which is marked as Ex.P.8 contains
the photographs of petitioner No.1 and the thumb
impression of petitioner No.1 on all pages and even near
the photo of the petitioner No.1 and that, the said Will is
attested by three witnesses and that, one of the
attesting witness is examined as P.W.2. Further, the
respondent has also admitted that, Ex.P.8 contains
photographs of petitioner No.1. Hence, in the present
case considering the materials on record, the first test to
prove the will is fulfilled by the petitioners.
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36.2. In respect of second test, in the Ex.P.8 the
son and daughter of petitioner No.1 who are the
petitioner No.2 and 3 and respondent in the present case
are excluded. The petitioner No.2 and 3 have not
questioned the execution of Will. Hence, their exclusion
from the Will do not create any suspicion. In respect of
respondent, as stated above, the respondent has not
allowed the petitioner No.1 to enjoy her share from the
year 1991 till her death and that, the Ex.P.8 shows that,
as petitioner No.4 and 5 have taken care of petitioner
No.1 and to meet the expenses of litigation, the Will has
been executed in their favour. Hence, the petitioners
have shown the reasons why the respondent is excluded
from the Will.
36.3. In respect of third test, the respondent has
questioned the sound state of mind of petitioner No.1.
But, the respondent has not produced any documentary
evidences nor examined any witnesses to show that
petitioner No.1 was not in sound state of mind at the
time of executing the Will. On the other hand, the
evidence of P.W.1 and 2 show that petitioner No.1 was in
sound state of mind at the time of executing the Will.
36.4. In respect of fourth test, a circumstance
would be suspicious when it is not normal or is not
normal except in a normal situation or is not accepted or
a normal person or does not express the mind of
testator. In the present case, the Ex.P.8 clearly shows
that why the Will has been executed in favour of
petitioner No.4 and 5 by excluding the respondent and
other petitioners and that, the Will expresses the desire
of petitioner No.1 to bequeath her share to petitioner
No.4 and 5. Further, as stated above, non-stating the
exact time of presenting the Will, contradictions in the
number and place of signatures of P.W.2 in the Will and
delay in producing the Will before the Court do not
create any suspicion and that, the said contradictions do
not disprove the desire of petitioner No.1 to execute the
Will in favour of petitioner No.4 and 5.
36.5. In respect of fifth test, the Will is reduced
in writing and petitioner No.1 has affixed her thumb
impression and that, the said Will is attested by three
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witnesses and that, the attesting witness is examined as
P.W.2 and he has deposed about executing the Will by
the petitioner No.1. Hence, the petitioners have proved
the execution of the Will as per provisions of Indian
Evidence Act and Indian Succession Act.
36.6. Hence, considering the decision relied by the
respondent, the petitioners have fulfilled all the five test
as stated in the said decision to prove the execution of
the Will.
37. The Advocate for respondent has relied upon
the decision in case of Virupakshappa Malleshappa and
others Vs. Smt.Akkamahadevi and others, reported in
AIR 2002 Karnataka 83. In the said decision, the
attesting witness has not stated that, testator has signed
in his presence and that, in the said case, the wife and
children of the testator were excluded and that, the
propounder of Will have not shown that testator has
greater love towards them as against the wife and
children of testator. Whereas, in the present case, the
attesting witness has stated that, petitioner No.1 has
affixed her thumb impression to the Will and that, the
Will shows the reason why petitioner No.1 executed will
in favour of petitioner No.4 and 5 by excluding the
respondent. Hence, the said decision is not applicable to
the facts and circumstances of the present case.
38. Further, the Advocate for respondent has
relied upon the decision in case of Lalitaben Jayantilal
Popat Vs. Pragnaben Jamnadas Kataria and others,
reported in AIR 2009 Supreme Court 1389. In the said
decision, how the custody of the Will came to the
possession of the attesting witness was not explained
and it was not proved that both attesting witnesses
attested the will in present of each other or testator. In
the present case, the Will was found by the petitioners
No.4 and 5 and it was in custody of the petitioner No.4
and 5 and further, P.W.2 during his examination in chief
and during cross examination has stated that, other
attesting witnesses and the testator have signed the Will
in his presence. Further, as discussed above, there are
no suspicious circumstances surrounding the Will. Hence,
the said decision is not applicable to the facts of the
present case.
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39. Hence, considering the entire materials on
record, at first, the Will was executed as per provisions
of Indian Succession Act. Secondly, the Will was proved
by examining one of the attesting witness of the Will as
P.W.2. Thirdly, nothing is elucidated from the mouth of
P.W.2 to disbelieve his evidence in respect of petitioner
No.1 affixing her thumb mark to the Will and the signing
of the said will by the other witnesses in presence of the
petitioner No.1. Fourthly, the R.W.1 has admitted that,
petitioner No.1 is to execute documents by putting her
thumb impression and that, the Ex.P.8-Will contain the
photo of petitioner no.1. Fifthly, considering the litigation
between the petitioner No.1 and respondent from the
year 1991 till her death and the reasons stated in the
Will for bequeathing the shares to petitioner No.4 and 5
excluding the respondent appears to be genuine. Sixthly,
the petitioner No.2 and 3 are also the natural heirs of
petitioner No.1, but they have not disputed the execution
of the Will. Seventhly, there are no materials placed by
the respondent to show that petitioner No.1 had no
sound state of mind at the time of executing the Will.
Eighthly, the evidence on record shows that even after
the injuries, petitioner No.1 was in a condition to walk
and that, the suggestions put forth by the respondent to
the witness of the petitioners shows that petitioner No.1
has suffered injury 7-8 years back and that, the said
injury cannot be considered to show that the petitioner
No.1 was not in sound state of mind to execute the Will.
Ninthly, the Ex.P.4 to 7 shows that petitioner No.1 was
residing with petitioner No.4 and 5 and that, they have
taken care of petitioner No.1 and performed final ritual
veneration of petitioner No.1. Tenthly, the respondent
has not placed anything on record to show that he has
taken care of petitioner No.1 and also failed to prove the
enmity between himself and P.W.2. Hence, for the
reasons stated above, this Court is of the view that,
petitioner No.2 to 5 have proved the execution of the
Will by petitioner No.1 in their favour. Accordingly, this
Court answer point No.1 in the affirmative.
40. Reasons for point No.2: For the reasons
stated while answering point No.1, the petitioners No.2
to 5 have proved the execution of the Will in favour of
the petitioner No.4 and 5. Considering the death of
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petitioner No.1 and the share allotted to the petitioner
No.1 in the preliminary decree passed in
R.S.A.No.1451/2005 clubbed with R.S.A.No.1417/2005,
the petitioner No.4 and 5 are entitled to the share of
petitioner No.1 as per Ex.P.8. Hence, petitioner No.2 to 5
have made out sufficient grounds to modify the
preliminary Decree as claimed in I.A.No.10.
41. On the other hand, respondent has failed to
disprove the contentions of petitioner No.4 and 5 in
respect of execution of Will by the petitioner No.4.
Hence, the respondent has failed to prove that the
Decree is to be modified as per his contentions taken in
I.A.No.9.
42. Considering the preliminary Decree passed in
R.S.A.No.1451/2005 clubbed with R.S.A.No.1417/2005
and the contentions taken by the petitioner No.2 to 5
and respondent, they show that petitioner No.1 was
entitled for 1/12 share in the suit schedule properties
and in sy.no.10/4 of Chikkenahalli village, Chitradurga
Taluk and in Rs.27,300/- in the hands of D.W.5
Parameshwarappa. Hence, the petitioner No.4 and 5 are
entitled for 3/24 share each and petitioner No.2 and 3
are entitled for 1/12 share each and the respondent is
entitled for 7/12 share in the suit schedule properties
and in sy.no.10/4 of Chikkenahalli village, Chitradurga
Taluk and in Rs.27,300/- in the hands of D.W.5
Parameshwarappa. For the purpose of avoiding
ambiguity, in the Decree, parties are referred as
plaintiffs and defendant as per their ranks in
O.S.No.32/1991. Accordingly, I answer point No.2 in
partly affirmative.
43. Reasons for point No.3: For the reasons
stated while answering point No.1 and 2, this Court
proceeds to pass the following:
ORDER
The I.A.No.9 filed by the respondent
under 0.20 R.18 r/w Section 151 of C.P.C. is
hereby dismissed.
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I.A.No.10 filed by the petitioners under
0.20 R.18 r/w Section 151 of C.P.C. is hereby
allowed.
The preliminary Decree is modified as
follows:
The plaintiff No.4 and 5 are entitled for
3/24 share each and plaintiff No.2 and 3 are
entitled for 1/12 share each and the
defendant is entitled for 7/12 share in the
suit schedule properties and in sy.no.10/4 of
Chikkenahalli village, Chitradurga Taluk and
in Rs.27,300/- in the hands of D.W.5
Parameshwarappa.
Draw preliminary Decree accordingly."
This is called in question before the First Appellate Court.
The First Appellate Court rejects it on the score of
maintainability. It is therefore, the petitioner is before this
Court.
8. A perusal at the orders passed by the concerned
Court in no way demonstrates non application of mind,
perversity or error apparent for this Court to interfere in
exercise of its jurisdiction under Article 227 of the Constitution
of India. The Apex Court in plethora of judgments has
elucidated that only if the order demonstrates perversity or
palpable error, the High Court should not interfere in its
jurisdiction under Article 227 of the Constitution of India.
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Finding no error, much less error apparent on record, the
petition stands dismissed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
CT: BHK
