Karnataka High Court
Smt.Annapurnamma W/O Nagappa Kittur vs Sri.Shanmukappa S/O Kotrappa Kittur on 6 March, 2025
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RSA No. 100036 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100036 OF 2016 (PAR-)
BETWEEN:
1. SMT. ANNAPURNAMMA W/O. NAGAPPA KITTUR,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
SINCE DECEASED AND HER LR'S I.E.
APPELLANTS NO.2 TO 5 ARE ALREADY ON RECORD.
2. SRI. CHIDANANDAPPA S/O. NAGAPPA KITTUR,
AGE: 42 YEARS, OCC: MECHANIC,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
3. SRI. MALATESH S/O. NAGAPPA KITTUR,
AGE: 40 YEARS, OCC: WELDING WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
Digitally signed by
MOHANKUMAR B 4. SRI. PRABHU S/O. NAGAPPA KITTUR,
SHELAR
Location: HIGH
COURT OF
AGE: 37 YEARS, OCC: BUSINESS,
KARNATAKA
DHARWAD BENCH R/O: HOSA NAGAR, NEAR REMAND HOME,
Date: 2025.03.07
16:18:44 +0530 RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
5. SRI. NIJAGUNEPPA S/O. NAGAPPA KITTUR,
AGE: 34 YEARS, OCC: PIGMI COLLECTION & AGENCY,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
...APPELLANTS
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE)
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RSA No. 100036 of 2016
AND:
SRI. SHANMUKAPPA S/O. KOTRAPPA KITTUR,
SINCE DECEASED BY LR'S.
1A). SMT. LEELAVATI W/O. SHANMUKAPPA KITTUR,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
1B). SRI. UMESH S/O. SHANMUKAPPA KITTUR,
AGE: 33 YEARS,
R/O: HOSA NAGAR, NEAR REMAND HOME,
RANEBENNUR, TQ: RANEBENNUR, DIST: HAVERI.
2. SRI. ASHOK S/O. IRAPPA KITTUR,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: GANDHI GALLI, DOMBAR ONI,
RANEBENNUR, TQ: RANEBENNUR,
DIST: HAVERI.
3. SRI MAHADEVAPPA S/O. MAHADEVAPPA KITTUR,
SINCE DECEASED BY HIS LR'S.
3A) SMT. GOURAMMA W/O. MAHADEVAPPA KITTUR,
AGE: 77 YEARS, OCC: HOUSEHOLD WORK,
R/O: GANDHI GALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
SINCE DECEASED AND HER LR'S I.E.
RESPONDENTS NO.3(B) & 3(C)(A) & (B)
ARE ALREADY ON RECORD.
3B). SRI. PRAKASH S/O. MAHADEVAPPA KITTUR,
AGE: 52 YEARS, OCC: BUSINESS,
R/O: GANDHI GALLI, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
3C). SRI. ASHOK S/O. MAHADEVAPPA KITTUR,
SINCE DECEASED BY HER LR'S.
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RSA No. 100036 of 2016
R3C(A) SMT. YALLAWWA W/O. ASHOK KITTUR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O. PAMPA NAGAR, BEHIND NITTOR SCHOOL,
HUNCHIKATTI ROAD, RANEBENNUR,
TAL: RANEBENNUR, DIST: HAVERI.
R3C(B) KUMARI SHRUTI D/O. ASHOK KITTUR,
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY HER GUARDIAN
MOTHER RESPONDENT NO.3C(A).
4. SMT. JAYAMMA W/O. CHANNABASAPPA KITTUR,
AGE: 57 YEARS, OCC: HOSUEHOLD WORK,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
5. KUMARI NETRAVATI D/O. CHANNABASAPPA KITTUR,
AGE: 25 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
6. KUMARI KAVITA D/O. CHANNABASAPPA KITTUR,
AGE: 23 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
7. SRI. KUMAR S/O. CHANNABASAPPA KITTUR,
AGE: 21 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
8. SRI. SHASHIKUMAR
S/O. CHANNABASAPPA KITTUR,
AGE: 19 YEARS,
R/O: KADARAMANDALAGI, TQ: BYADAGI,
DIST: HAVERI.
9. VISHWA PRINTING PRESS,
BY ITS PROPRIETOR,
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RSA No. 100036 of 2016
SRI. NAGARAJ MUNDASAD,
AGE: 52 YEARS, OCC: PROPRIETOR,
R/O: SUBHAS CHOUK, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
...RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADVOCATE FOR R2;
SRI. AVINASH BANAKAR, ADVOCATE FOR R4-R8;
R1(A & B), R3(C)(A) SERVED AND UNREPRESENTED;
R3(B)-HELD SUFFICIENT; R3(A)-DECEASED;
R9-DELETED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT & DECREE DATED 16.11.2015 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI, SITTING AT
RANEBENNUR IN R.A.NO.187/2009 CONFIRMING THE JUDGMENT
AND DECREE DATED 29.08.2009, PASSED BY THE ADDITIONAL
CIVIL JUDGE (SR.DN), RANEBENNUR IN O.S. NO.136/2004 AND
CONSEQUENTLY ALLOW THIS APPEAL, IN THE INTEREST OF
JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
challenging the judgment and decree dated
16.11.2015 passed in RA No.187 of 2009 on the file of
the II Additional District Judge at Haveri (sitting at
Ranebennur), dismissing the appeal and confirming
the judgment and decree dated 29.08.2009 passed in
OS No.136 of 2004 on the file of the Additional Civil
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Judge (Sr.Dn.), Ranebennur, decreeing the suit of the
plaintiffs.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that, Channabasappa-
original propositus had three sons namely, Kotrappa,
Irappa, and Mahadevappa. Kotrappa had three
children, namely, Nagappa (husband defendant No.1
and father of defendant Nos.2 to 5), Channabasappa
(husband of plaintiff No.5) and Shanmukhappa
(plaintiff No.1). The 2nd son of Channabasappa-Erappa
died leaving behind his wife Parvathavva, (plaintiff
No.3) and son-Ashokappa (plaintiff No.2). The 3rd son
of Channabasappa-Mahadevappa, died leaving behind
his wife Gowramma (plaintiff No.4(A)) and two
children namely, Prakash (plaintiff No.4(B)) and Ashok
(Plaintiff No.4(C)). It is the case of the plaintiffs that,
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after the death of original propositus-Channabasappa,
the 1st son - Kotrappa was managing the affairs of the
joint family and has acquired the suit schedule
properties, which are undivided ancestral properties of
plaintiffs and defendants, in which plaintiff Nos.2 to 4
were residing along with the defendant Nos.2 to 5 in
the house property. It is further stated in the plaint
that, house property was sold by all the sons of
Channabasappa by executing nominal Sale Deed in
favour of one Yellappa Venkapppa Ekabote, on
01.05.1946 and the possession of the property was
not delivered to Yellappa Venkappa Ekabote and
retained by the plaintiffs and defendants. It is also
stated that, on 24.06.1972, loan was repaid and as
such, the house property was repurchased in the
name of Kotrappa- being a manager of the joint
family. Hence, it is stated that, the house property
bearing CTS No.1591 is the joint family property of
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plaintiffs and defendants. It is also stated in the plaint
that, remaining properties are ancestral properties of
the plaintiffs as they were running, Printing Press as
well as the Saloon in the schedule property and
accordingly, it is the case of the plaintiffs that, the suit
properties are the joint family properties of children of
Channabasappa. It is also stated in the plaint that, the
plaintiffs came to know about the change of khata of
the item No.1 'A' and 'B' properties, in terms of the
registered Will dated 20.11.1996, said to have been
executed by the Kotrappa in favour of his daughter in
law- defendant No.1 and therefore, it is the contention
of the plaintiffs that the testator-Kotrpapa has no
authority under law to execute registered Will in
respect of entire share of the properties in favour of
defendant No.1 and also stated that, the said Will has
been executed under suspicious circumstances to
knock off the suit schedule properties and therefore,
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plaintiffs have filed OS No.136 of 2004 seeking relief
of partition and separate possession in respect of suit
schedule properties.
4. After service of summons, the defendants
entered appearance and filed detailed written
statement denying the averments made in the plaint.
It is the specific case of the defendant No.1 that, the
2nd son of Kotrappa-Channabasappa has no legal heir
and also stated that the suit schedule properties are
not the ancestral or joint family properties of the
plaintiffs and the defendants and the schedule
properties were self acquired properties by Kotrappa.
It is the principal contention of the defendant No.1
that, the said Kotrapppa in his life time had acquired
the suit schedule properties out of his own income and
as such, executed registered Will in favour of
defendant No.1 and accordingly, it is the case of the
defendant No.1 that, she became the absolute owner
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of the property mentioned in the registered Will. It is
also stated that, as Kotrappa was member of the Co-
Operative Society-Anand Bhavan Housing Co-
Operative Society and Item No.C of the schedule
property was sanctioned by the said Society to the
Kotrappa and therefore, Kotrappa is having absolute
right to execute the registered Will in favour of
defendant No.1. It is also specific case of the
defendant No.1 that, Kotrappa had reposed confidence
with defendant No.1 and defendant No.1 was taking
care of the health of her father in law-Kotrappa and
therefore, the said Kotrappa executed registered Will
dated 20.11.1996 in favour of defendant No.1 and
accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the Trial Court
has formulated issues for its consideration.
6. In order to establish their case, plaintiffs have
examined two witnesses as PW1 and PW2 and got
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marked 08 documents as Exs.P1 to P8. On the other
hand, defendants examined two witnesses as DW1
and DW2 and got marked 10 documents as Exs.D1 to
D10.
7. The Trial Court, after considering the material on
record, by its judgment and decree dated 29.08.2009,
decreed the suit of the plaintiffs and being aggrieved
by the same, the defendant Nos.1 to 5 have preferred
Appeal in RA No.187 of 2009 on the file of First
Appellate Court and the said appeal was resisted by
the plaintiffs. The First Appellate Court, after re-
appreciating the facts on record, by its judgment and
decree dated 16.11.2015 dismissed the appeal and
confirmed the judgment and decree passed by the
Trial Court in OS No.136 of 2004. Being aggrieved by
the same, the appellants/defendant Nos.1 to 5 have
preferred this Regular Second Appeal under Section
100 of CPC.
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8. I have heard Smt. Pallavi S. Pachhapure, learned
counsel for the appellants and Sri. N.P. Vivek Mehta,
learned counsel appearing for the respondent No.2
and Sri. Avinash Banakar, learned counsel for the
respondent Nos. 4 to 8.
9. Smt. Pallavi S. Pachhapure, learned counsel for
the appellants submits that, both the courts below
have committed an error in arriving at a conclusion
that, the defendants have to prove the execution of
the registered Will as well as the severance of the
joint family members of original propositus-
Channabasappa and his son Kotrappa's family and the
said finding recorded by both the courts below
requires to be interfered with in this appeal. It is
further arguments of learned counsel appearing for
the appellants that, Kotrappa had acquired the suit
schedule properties on account of his own earnings
and nothing has been pointed with regard to
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acquisition of properties by remaining two brothers,
namely Irappa and Mahadevappa and therefore,
finding recorded by both the courts below that the suit
schedule properties are joint family properties of
Channabasappa cannot be accepted. It is the
contention raised by the learned counsel appearing for
the appellants that, Ex.D1 is a registered Will dated
20.11.1996, executed by Kotrappa in favour of
defendant No.1 and in order to prove the Will the
defendants have examined the one of the witnesses to
the Will as DW2, who deposed about the due
execution of the Will and therefore, the finding
recorded by both the courts below requires
interference in this appeal. Hence, it is the argument
advanced by the learned counsel appearing for the
appellants that, the finding recorded by both the
courts below are contrary to factual aspects on record
and therefore, sought for allowing the appeal.
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10. Sri. N.P. Vivek Mehta, learned counsel for the
respondent No.2 submits that father of Kotrappa and
Erappa had sold the house property in favour of
Yellappa Venkappa Ekabote as per registered Sale
Deed dated 01.05.1946 which is nominal Sale Deed
and thereafter, loan was repaid and in turn, the said
property was got back to the family of Channabasappa
and therefore, the Sale Deed was executed in favour
of Kotrappa on 24.06.1972, being a manager of the
joint family and therefore, he sought to justify the
impugned judgment and decree passed by the courts
below.
11. Sri. Avinash Banakar, learned counsel appearing
for the respondents/plaintiffs sought to justify the
impugned judgment and decree passed by the courts
below and argued that, the there is no severance of
joint family amongst Channabasappa and his three
children and also after the death of Channabasappa,
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the joint family was continued therein and in this
regard, he invited the attention of the court to the
deposition of DW1 and DW2 and argued that, joint
family was continued even as on the date of execution
of the registered Will dated 21.11.1996 by said
Kotrappa. In this regard, it is the principal submission
of Sri. Aviniash Banakar, learned counsel for the
respondents that, as both the courts below, based on
the factual aspects on record, rightly granted relief of
partition and separate possession and the said finding
cannot be disturbed under Section 100 of CPC and
accordingly, sought for dismissal of the appeal.
12. In the light of the submission made by the
learned counsel appearing for the parties and the
finding recorded by both the courts below, which
makes it clear that, the lis between the parties is with
regard to immovable properties standing in the name
of original propositus-Channabasppa and his son
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Kotrappa. In order to understand the relationship
between the parties it is appropriate to extract the
Genealogical Tree of the parties:
Chanabasappa
Kotrappa Irappa (Dead) Mahadevappa-Dead
-died on 12/11/2003 Parvatevva(wife)-P3 -Gouramma (wife)-P4A
Ashok- P2
Nagappa Channabasappa Shanmukh-P1 Prakash-P4B Ashok-P4C
(Dead) (Dead)
Jayamma-P5
Annapurnamma(wife) Chidanand Malatesh Prabhu Nijaguneppa
D1 D2 D3 D4 D5
13. On careful perusal of the Genealogical Tree would
indicate that original propositus-Channabasappa had
three sons namely, Kotrappa, Irappa, and
Mahadevappa. Kotrappa had three children namely,
Nagappa (husband defendant No.1 and father of
defendant Nos.2 to 5), Channabasappa (husband of
plaintiff No.5) and Shanmukhappa (plaintiff No.1). The
2nd son of Channabasappa-Irappa died leaving behind
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his wife Parvathavva, (plaintiff No.3) and son-
Ashokappa (plaintiff No.2). The 3rd son of
Chanabasappa-Mahadevappa, died leaving behind his
wife Gowramma (plaintiff No.4(A)) and two children
namely, Prakash (plaintiff No.4(B)) and Ashok
(Plaintiff No.4(C)). It is the case of the plaintiffs that,
the suit schedule properties are the joint and ancestral
properties of plaintiffs and defendants and there was
no severance of jointness in the suit schedule
properties as the plaintiffs and defendants were
residing together in the same house. In this regard,
learned counsel appearing for the appellants denied
the same. Hence, I have carefully examined the
evidence of DW2, who deposed that, in the house
property bearing CTS No.1591, plaintiff No.2 to 4 are
residing along with the defendants. It is also admitted
by DW2, that, DW1 was actively participated during
the execution of the registered Will dated 20.11.1996.
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DW2 further deposed that, at the relevant point of
time, the testator-Kotrappa suffered an injury to leg
and it was deposed that, the plaintiffs and defendants
were residing together. Therefore, I am of the opinion
that, the defendant No.1 has failed to prove that there
is severance of joint family between the plaintiffs and
defendants.
14. Insofar as the execution of registration of Will
dated 20.11.1996, (Ex.D1) is concerned, I have
carefully examined the evidence of DW1 and DW2,
wherein both the witnesses have deposed that at the
time of execution of the registered Will, DW1
(defendant No.1) has participated during the due
execution of the registered Will. DW1 deposed as
follows:
"D ªÀÄÈvÀÄå¥ÀvÀæ §gÉzÀÄPÉÆlÖ ªÀiÁ¼ÀV ªÀÄ£ÉAiÀÄ°è 2 ºÁUÀÆ 3 ªÀÄvÀÄÛ 4£ÉÃ
ªÁ¢AiÀÄgÀÄ ªÁ¸ÀªÁVzÁÝgÉ. "
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15. The said aspect of the matter makes it clear that,
defendants, being propounder of the Will have failed
to remove the suspicious circumstances with regard to
due execution of the Will dated 20.11.1996 (Ex.D1). It
is also to be noted that the parties were residing
together under the same roof and therefore, as there
is no severance of jointness of plaintiffs and
defendants, and therefore, the finding recorded by
both the courts below requires to be confirmed in this
appeal. In this regard, it is relevant to extract the
observation made by the Hon'ble Supreme Court in
the case of Murthy and others vs. C. Saradambal
and others reported in (2022) 3 SCC 209, wherein
at paragraphs 31 to 39 it is held as under:
31. One of the celebrated decisions of this Court on
proof of a will, in the case of H.Venkatachala Iyenger
vs. B.N.Thimmajamma, wherein this Court has clearly
distinguished the nature of proof required for a
testament as opposed to any other document. The
relevant portion of the said judgment reads as under:-
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"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, we must inevitably refer to the statutory
provisions which govern the proof of
documents. Sections 67 and 68, Evidence Act are
relevant for this purpose. Under Section 67, if a
document is alleged to be signed by any person,
the signature of the said person must be proved to
be in his handwriting, and for proving such a
handwriting under Sections 45 and 47 of the Act
the opinions of experts and of persons acquainted
with the handwriting of the person concerned are
made relevant. Section 68 deals with the proof of
the execution of the document required by law to
be attested; and it provides that such a document
shall not be used as evidence until one attesting
witness at least has been called for the purpose of
proving its execution. These provisions prescribe
the requirements and the nature of proof which
must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections
59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of
sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this
section indicate what is meant by the expression "a
person of sound mind" in the context. Section
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63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other
person in his presence and by his direction and that
the signature or mark shall be so made that it shall
appear that it was intended thereby to give effect
to the writing as a will. This section also requires
that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved
to be the last will of the testator has to be decided
in the light of these provisions. Has the testator
signed the will? Did he understand the nature and
effect of the dispositions in the will? Did he put his
signature to the will knowing what it contained?
Stated broadly it is the decision of these questions
which determines the nature of the finding on the
question of the proof of wills. It would prima facie
be true to say that the will has to be proved like
any other document except as to the special
requirements of attestation prescribed by Section
63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of the
prudent mind in such matters."
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32. In fact, the legal principles with regard to the proof
of a will are no longer res integra. Section 63 of the
Indian Succession Act, 1925 and Section 68 of the
Evidence Act, 1872, are relevant in this regard. The
propounder of the will must examine one or more
attesting witnesses and the onus is placed on the
propounder to remove all suspicious circumstances
with regard to the execution of the will.
33. In the above noted case, this Court has stated that
the following three aspects must be proved by a
propounder:-
"16...(i) that the will was signed by the testator in a
sound and disposing state of mind duly
understanding the nature and effect of disposition
and he put his signature on the document of his
own free will, and
(ii) 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 propounder, and
(iii) if a will is challenged as surrounded by
suspicious circumstances, all such legitimate doubts
have to be removed by cogent, satisfactory and
sufficient evidence to dispel suspicion. In other
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words, the onus on the propounded can be taken to
be discharged on proof of the essential facts
indicated therein."
34. In Jaswant Kaur v. Amrit Kaur and others, this
Court pointed out that when a will is allegedly
shrouded in suspicion, its proof ceases to be a simple
lis between the plaintiff and the defendant. What
generally is an adversarial proceeding, becomes in
such cases, a matter of the Court's conscience and
then, the true question which arises for consideration
is, whether, the evidence let in by the propounder of
the will is such as would satisfy the conscience of the
Court that the will was duly executed by the testator.
It is impossible to reach such a satisfaction unless the
party which sets up the will offers cogent and
convincing explanation with regard to any suspicious
circumstance surrounding the making of the will.
35. In Bharpur Singh and others v. Shamsher Singh,
this Court has narrated a few suspicious circumstance,
as being illustrative but not exhaustive, in the
following manner:-
"23. Suspicious circumstances like the following
may be found to be surrounded in the execution of
the will:
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(i) The signature of the testator may be very shaky
and doubtful or not appear to be his usual
signature.
(ii) The condition of the testator's mind may be
very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable
or unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for
the natural heirs without any reason.
(iv) The dispositions may not appear to be the
result of the testator's free will and mind.
(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for
long.
(viii) Incorrect recitals of essential facts."
36. It was further observed that the circumstances
narrated hereinbefore are not exhaustive. Subject to
offering of a reasonable explanation, existence thereof
must be taken into consideration for the purpose of
arriving at a finding as to whether the execution of the
will had been duly proved or not. It may be true that
the Will was a registered one, but the same by itself
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would not mean that the statutory requirements of
proving the will need not be complied with.
37. In Naranjan Umeshchandra Joshi v. Mrudula Jyoti
Rao, this Court has observed as under:-
"34. There are several circumstances which would
have been held to be described by this Court as
suspicious circumstances:
(i) when a doubt is created in regard to the
condition of mind of the testator despite his
signature on the will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant
circumstance
(iii) Where propounder himself takes prominent
part in the execution of will which confers on him
substantial benefit.
35. We may not delve deep into the decisions cited
at the Bar as the question has recently been
considered by this Courts in B.Venkatamuni v. C.J.
Ayodhya Ram Singh, wherein this Court has held
that the court must satisfy its conscience as
regards due execution of the will by the testator
and the court would not refuse to probe deeper into
the matter only because the signature of the
propounder on the will is otherwise proved.
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36. The proof of a will is required not as a ground of
reading the document but to afford the Judge
reasonable assurance of it as being what it purports to
be.
37. We may, however, hasten to add that there exists
a distinction where suspicions are well founded and
the cases where there are only suspicions alone.
Existence of suspicious circumstances alone may not
be sufficient. The court may not start with a suspicion
and it should not close its mind to find the truth. A
resolute and impenetrable incredulity is not demanded
from the Judge even if there exist circumstances of
grave suspicion."
38. This Court in Anil Kak v. Sharada Raje, held as
under:-
"20. This Court in Anil Kak v. Sharada Raje opined
that the court is required to adopt a rational
approach and is furthermore required to satisfy its
conscience as existence of suspicious circumstances
plays an important role, holding:
52. Whereas execution of any other document can
be proved by proving the writings of the document
or the contents of it as also the execution thereof,
in the event there exists suspicious circumstances
the party seeking to obtain probate and/or letters
of administration with a copy of the will annexed
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must also adduce evidence to the satisfaction of the
court before it can be accepted as genuine.
53. As an order granting probate is a judgment in
rem, the court must also satisfy its conscience
before it passes an order.
54. It may be true that deprivation of a due share
by (sic to) the natural heir by itself may not be held
to be a suspicious circumstance but it is one of the
factors which is taken into consideration by the
courts before granting probate of a will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for proving the
attestation."
39. Similarly, in Leela Rajagopal and others v.Kamala
Menon Cocharan and others, this Court opined as
under:-
"13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will
definitely justify a close scrutiny before the same
can be accepted. It is the overall assessment of the
court on the basis of such scrutiny; the cumulative
effect of the unusual features and circumstances
which would weigh with the court in the
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determination required to be made by it. The
judicial verdict, in the last resort, will be on the
basis of a consideration of all the unusual features
and suspicious circumstances put together and not
on the impact of any single feature that may be
found in a will or a singular circumstance that may
appear from the process leading to its execution or
registration. This, is the essence of the repeated
pronouncements made by this Court on the subject
including the decisions referred to and relied upon
before us."
16. It is also relevant to cite the judgment of the
Hon'ble Supreme Court in the case of Kavita Kanwar
Vs. Mrs. Pamela Mehta and Others reported in AIR
2020 SC 2614, wherein at paragraphs 20(4) to 20(6)
it is held as under:
20.4. The learned counsel has relied on the decisions
of this Court in B. Venkatamuni v. C.J. Ayodhya Ram
Singh & Ors. : (2006) 13 SCC 449; H. Ventakachala
Iyengar; and Rani Purnima Debi (supra)
amongst others, to submit that the Probate Court can
investigate into the matter of a Will despite the fact
that the signature found thereon has been proved or
ingredients of Section 68 of the Evidence Act has been
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complied with. The learned counsel has referred to the
definition of the expression "suspicion" in P.
Ramanatha Aiyar's Advanced Law Lexicon and has also
relied upon the decision in Indu Bala (supra) to submit
that suspicion permits the Court to realistically
imagine any doubtful or distrustful facet of a case; and
in testamentary jurisdiction, the Courts are permitted
to ferret out doubtful circumstances, which cannot be
described as conjecture or surmise.
20.5. The learned counsel has again recounted various
circumstances, including manner of making of the Will
and contradictions/inconsistencies in the statements of
the witnesses examined by the appellant, which have
been taken into account in the impugned judgments
and have also been referred by the learned counsel for
the respondent No. 2; which need not be repeated.
The learned counsel has also placed before us a flow
chart reflecting thirteen aspects of findings, including
those of suspicious circumstances, which have been
returned concurrently against the appellant and has
contended that no case for interference with such
concurrent findings is made out. The counsel has
additionally relied on the decision in Apoline D'Souza
v. John D'Souza: AIR 2007 SC 2219.
20.6. In another line of arguments, learned counsel for
the respondent No. 1 has contended that the Will in
question cannot have greater sanctity only because
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the opening and closing parts are handwritten; rather
it is strange that the testatrix chose not to write the
main bequest by hand and then, the handwritten
portion of the Will in question is placed in a squeezed
manner and is not attested by any witness. The
learned counsel would submit that such interlineations
only go to show that additions have been made in the
Will subsequent to its execution and failure to assign
the reason behind such a course is fatal to the case
put up by the propounder. The learned counsel has
relied on the decision in Dayananadi v. Rukma D.
Suvarna & Ors.: (2012) 1 SCC 510 in support of these
contentions."
17. Following the declaration of law made by the
Hon'ble Supreme Court, in the aforementioned
judgments, it is evident that, DW1 took prominent role
in the execution of the registered Will, in which
defendant No.1 received substantial benefit by itself is
be treated as suspicious circumstance, as defendant
No.1 was attending the due execution of the Will and
therefore, defendant No.1 being the propounder of the
Will, failed to remove the said suspicion by clear and
satisfactory evidence. Therefore, both the courts
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below have rightly decreed the suit holding that
plaintiffs are entitled for share in the suit schedule
property. Therefore, I do not find material irregularity
or perversity in the judgments and decree passed by
the Courts below and accordingly, Regular Second
Appeal is liable to be dismissed. Since, the
defendants/appellants have not a made out ground for
formulation of substantial question of law as required
under Section 100 of Code of Civil Procedure, Regular
Second Appeal is dismissed at the Admission stage
itself.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
