IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA W.P.Nos.35856 – 35857 OF 2017 [GM-CPC] BETWEEN:
1. SMT.NAGARATHANAMMA W/O SRI K.G.SHIVASHANKAR AGED ABOUT 41 YEARS HOUSE WIFE KANDAGAL VILLAGE DAVANGERE TALUK 577219.
2. SRI K.G.SHIVASHANKAR S/O K G MALLAPPA AGED ABOUT 51 YEARS AGRICULTURIST KANDAGAL VILLAGE DAVANGERE TALUK 577 219. ... PETITIONERS (BY SRI: VIJAY KUMAR, ADVOCATE FOR M/S.BAJENTRI ASSOCIATES) AND:
1. SRI A G ONKARAPPA S/O LATE CHANNAPPIA GURUBASAPPA AGED ABOUT 76 YEARS AGRICULTURIST ATTIGERE VILLAGE DAVANGERE TALUK 577 219.
2. SRI A.G.NAGAPPA S/O LATE CHANNAPPIA GURUBASAPPA AGED ABOUT 70 YEARS AGRICULTURIST ATTIGERE VILLAGE DAVANGERE TALUK 577 219.
3. SRI A.G.REVANASIDDAPPA S/O LATE CHANNAPPIA GURUBASAPPA AGED ABOUT 66 YEARS AGRICULTURIST ATTIGERE VILLAGE DAVANGERE TALUK 577 219. …RESPONDENTS (BY:SRI JAGADISH HIREMATH, ADVOCATE FOR C/R1 TO R3) THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 11.7.2017 VIDE ANNEXURE-A PASSED BY THE II ADDL. SENIOR CIVIL JUDGE, DAVANAGERE ON I.A.NO.XVI FILED IN O.S.NO.72/2013.
THESE W.Ps. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners are the plaintiffs in O.S.No.72/2013. The said suit has been filed seeking the relief of declaration and consequential relief of possession, mesne profits, permanent injunction and etc. The respondents, who are the defendants in the said suit have relied on Exhibit D33, which is stated to be the testament of mother of the plaintiffs. The plaintiffs have disputed the said Will propounded by the defendants. In that regard, they filed an application under Order XXVI Rule 10A of Code of Civil Procedure, 1908 (C.P.C.) seeking an expert opinion on the signature of testator - Smt.Halamma on Exhibit D33, by comparing her signature with the admitted signature of the testator as also the thumb impression register and the registered consent deed. In that regard, the plaintiffs sought for appointment of a handwriting expert to submit a report to the Trial Court. The Trial Court, by the impugned order dated 11.7.2017 has dismissed the application. Being aggrieved, plaintiffs have preferred these writ petitions.
2. I have heard learned counsel for the petitioners. He submits that Exhibit D33 is a disputed document. In fact, the signature of the testator, Smt.Halamma on the said document is also disputed. Therefore, the petitioners sought for reference of Exhibit D33 to a handwriting expert in order to prove the fact that it is not her signature. He submitted that the Trial Court was not right in dismissing the said application. He submitted that if Exhibit D33 is referred to a handwriting expert to compare the signature and thumb impression of the testator, Smt.Halamma with the registered Consent Deed, then it would be established that they are not her signature or thumb impression on Ex.D33. He submitted that the Trial Court was not right in dismissing the application.
3. Having heard learned counsel for the petitioners and on perusal of the material on record, particularly, the impugned order, it is noted that the Trial Court has extracted Issue No.7, which is to the effect that, as to whether the defendants have proved that late Smt.Halamma had executed a Will on 17.8.2003 and bequeathed her interest in the suit schedule property in their favour.
4. Having regard to the said issue, the Trial Court has rightly held that the burden of proving the aforesaid Will lies on the defendants. In that view of the matter, the Trial Court has dismissed the said application.
5. I find that the Trial Court was justified in doing so, as it is the settled position in law that the burden of proving a testament lies on the propounder of the same. In this regard, it is relevant to refer to the celebrated decision of the Hon’ble Supreme Court, in the case of H.VENKATACHALA IYENGAR v. B.N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443, the relevant portion of which reads as under:
“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 S.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 Ss. 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, Ss.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 provisions. 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 S.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.
However, there is one important feature which distinguishes will 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.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the 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.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision 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.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must, remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties: AIR 1946 P C.
It is no doubt true that on the proof of the signature of the deceased or his acknowledgement that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspiciously cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case: AIR 1929 Cal 484.”
6. In that view of the matter, there is no merit in the writ petitions and they are accordingly dismissed.
7. It is further observed that in the event the Trial Court suo motu intends to refer the disputed signature or thumb impression on Exhibit D33 to a handwriting expert, then it may do so.
Sd/- JUDGE VGR