R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.1228/2012 C/W RFA.No.986/2012 IN RFA.No.1228 OF 2012 BETWEEN:
SMT. PRAMILA DEVI WIFE OF PILLANNA AGED 65 YEARS RESIDING AT NO.734 HEGGANAHALLI CROSS LAKSHMAN NAGAR SUNKADAKATTE BENGALURU. ... APPELLANT (BY SRI. N.R. JAGADEESWARA, ADVOCATE) AND:
1. M. SATHYANARAYANA SON OF MAHADEV AND LATE RANGAMMA AGED MAJOR.
2. SMT. T. SHANTHAMMA WIFE OF LATE RAMANNA AGED MAJOR BOTH ARE RESIDING AT No.462 12TH MAIN ROAD, 6TH BLOCK RAJAJINAGAR BENGALURU-560 010.
3. SMT. T. SHIVAMMA WIFE OF LATE NAGAGOVINDAPPA AGED MAJOR RESIDING AT No.15, (OLD No.18) JOGUPALYA ULSOOR BENGALURU-560 008.
4. SMT. PADMINI WIFE OF LATE YOGESH GOVINDARAJ AGED MAJOR NO.46/2, 12TH MAIN, 6TH BLOCK RAJAJINAGAR BENGALURU-560 010.
5. THE MANAGER KARNATAKA STATE FINANCIAL CORPORATION WEST BRANCH 192, WEST OF CHORD ROAD 2ND STAGE BENGALURU-560 010. ... RESPONDENTS (SRI. T. SHESHAGIRI RAO, ADVOCATE FOR R1 TO R3 SRI. RAVISHANKAR S., ADVOCATE FOR R4 SRI. K.N. PRAKASH, ADVOCATE FOR R5) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 07.03.2012 PASSED IN O.S.No.15823/1999 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FILED FOR DECLARATION, PERMANENT INJUCTION, PARTITION AND SEPARATE POSSESSION.
IN RFA.No.986 OF 2012 BETWEEN:
SMT. PADMINI WIFE OF LATE YOGESH GOVINDARAJ AGED MAJOR RESIDING AT No.46/2, 12TH MAIN ROAD, 6TH BLOCK, RAJAJINAGAR BENGALURU-560 010. ... APPELLANT (BY SRI. RAVISHANKAR S., ADVOCATE) AND:
1. M. SATHYANARAYANA SON OF LATE MAHADEV AGE MAJOR.
2. SMT. T. SHANTHAMMA WIFE OF LATE RAMANNA AGED MAJOR BOTH ARE RESIDING AT NO.46/2, 12TH MAIN ROAD, 6TH BLOCK RAJAJINAGAR BENGALURU-560 010.
3. SMT. T. SHIVAMMA DAUGHTER OF THAMMAIAH WIFE OF LATE NAGAGOVINDAPPA RESIDING AT No.15, (OLD NO.18) G. No.13, JOGUPALYAM ULSOOR BENGALURU-560 008.
4. SMT. B. PRAMILA DEVI WIFE OF LATE T. PILLANNA AGED ABOUT 72 YEARS RESIDING AT No.734 LAKSHMAN NAGAR HEGGANAHALLI CROSS SUNKADAKATTE BENGALURU.
5. MANAGER KARNATAKA STATE FINANCIAL CORPORATION WEST BRANCH No.197, WEST OF CHORD ROAD 2ND STAGE BENGALURU-560 086. ... RESPONDENTS (SRI. T. SESHAGIRI RAO, ADVOCATE FOR CAVEATOR – RESPONDENT Nos.1 to 3 SRI N.R. JAGADEESWARA, ADVOCATE FOR RESPONDENT No.4 SRI. K.N. PRAKASH, ADVOCATE FOR R5) THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 07.03.2012 PASSED IN O.S.No.15823/1999 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FILED FOR DECLARATION, PERMANENT INJUCTION AND SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals are filed against the judgment and decree dated 07.03.2012 passed in O.S. No.15823/1999 on the file of 28th Additional City Civil Judge, Mayo hall unit, Bengaluru.
2. RFA No.1228/2012 and R.F.A. No.986/2012 are filed by defendant No.1(b) and defendant No.1(a) respectively questioning the aforesaid judgment and decree passed in O.S. No.15823/1999 by the Court below in decreeing the said suit by declaring that the Will dated 30.06.1993 executed by late Thammaiah is null and void and that the plaintiffs, respondent Nos.1 to 3 herein, are entitled for partition and separate possession of their 3/4th share in the suit schedule property.
3. The brief facts of the case are that:
Plaintiffs in the plaint have contended that Sri B.S. Thammaiah had three daughters, namely, Smt. T.Rangamma, the mother of plaintiff No.1, Smt.T.
Shanthamma (plaintiff No.2) and Smt.T. Shivamma (plaintiff No.3) and one son, namely, Sri T. Pillanna. The husband of defendant No.1(b) was the son of Sri Thammaiah, who died leaving behind defendant No.1(b) as well as Yogesh Govindaraju as his heirs. Defendant No.1 – Yogesh Govindaraju also died during the pendency of the suit leaving behind defendant No.1(a), his wife as well as his mother as his heirs. Sri Thammaiah was the absolute owner of the suit schedule property i.e., property bearing No.46/2, 12th main road, 80 feet road, 6th block, Rajajinagar, Bengaluru-10. It is the case of the plaintiffs that Sri T. Pillanna, son of Thammaiah, after his marriage, left his father and started living with his wife and children and did not take care of his father - Thammaiah. Plaintiff Nos.2 and 3 and the mother of plaintiff No.1, the daughters of Thammaiah being widows, looked after him during his old age. Thammaiah was living with his daughters in the property purchased by him. Thammaiah had executed a Will in respect of the suit schedule property. Thammaiah’s daughter/s started a factory under the name and style ‘Ganga Plastic Industries’. Thammaiah was also a partner of the said Factory. For establishment of the said factory, plaintiffs had raised loan from defendant No.2 – Karnataka State Financial Corporation (for short, ‘the KSFC’) and in that connection, the original documents of the suit schedule property were pledged to defendant No.2. Along with the said documents, original registered Will executed by Thammaiah was also produced before the second defendant. Under the said Will, Thammaiah bequeathed the suit schedule property equally among his children including his son Pillanna, even though he had neglected to maintain him. Thammaiah’s first daughter, namely, Smt. Rangamma, the mother of the first plaintiff, died on 13.02.1993. At that time, the first defendant and his father attended the funeral. After attending to the ceremonies of Smt. Rangamma, defendant No.1 took Thammaiah to his house and within a month of his second visit to the first defendant’s place Thammaiah breathed his last in the house of defendant No.1.
4. It is also stated in the plaint that the loan amount i.e., principal amount along with interest, which was taken by ‘Ganga Plastic Industries’ was repaid by the other partners except late Thammaiah. But, the original documents were with the second defendant. On 05.05.1999, the second defendant issued a notice to Smt. Gangambika and a copy of the same was sent to the plaintiffs. It is further stated that plaintiffs issued reply notice to the second defendant. After receipt of the notice from the second defendant, the plaintiffs came to know that the first defendant had got registered the Will from Thammaiah on 30.06.1993. The plaintiffs came to know that defendant No.1 had got changed the khata in his name suppressing the fact of the execution of the earlier Will by late Thammaiah and without intimating the same to daughters or other grandsons of Thammaiah. The plaintiffs along with their family members are residing in the suit schedule property. As per the Will executed by Thammaiah, Plaintiff Nos.2 and 3 as well as plaintiff No.1 and the legal heirs of late Pillanna are entitled for equal share. Thammaiah never intended to execute any Will in favour of defendant No.1. It is stated that defendant No.1 exercised undue influence on Thammaiah to get the Will dated 30.06.1993. Late Thammaiah was bed ridden, ailing for quite a long time. He was not in a sound disposing state of mind when the said Will was alleged to have been executed by him. The execution of the said Will was suppressed by defendant No.1 till the death of Thammaiah, who expired on 01.02.1994. At the time of alleged execution of the said Will, Thammaiah was aged about 85 years and he had suffered paralytic stroke. He was unable to move, unable to understand as to what he was doing. Even though two attesting witnesses, Gangaiah and Venkatesh, were alleged to have attested to the said Will, one of the attesting witnesses i.e., Venkatesh is none other than the maternal uncle of defendant No.1. So far as another witness, Gangaiah, is concerned, he was unknown to the family of the plaintiffs and defendants. The deceased Thammaiah had no intention to exclude his daughters from succeeding to the suit schedule property.
The Will executed by Thammaiah on 24.06.1974 clearly indicated that he had lot of love and affection towards his daughter i.e., Smt. Rangamma. Similarly, in the Will dated 03.03.1981, Thammaiah had intention to bequeath the property to his children i.e., Pillanna and three daughters equally. It is stated that the Will dated 30.06.1993 came into existence in suspicious circumstances. The Will is liable to be declared as a fraudulent document.
5. The plaintiffs contended that the Will dated 30.06.1993 is a concocted one and if the Will dated 30.06.1993 was ignored, then partition had to be effected or the earlier Will dated 03.03.1981 would prevail. Plaintiffs claimed that they together would be entitled to 3/4th share in the suit schedule property and defendants would be entitled to 1/4th share in the said property in case of partition. Otherwise, parties would be entitled to the suit schedule property in terms of the Will dated 03.03.1981, if the same was upheld. Accordingly, the plaintiffs filed the suit for declaration that the Will executed by late Thammaiah on 30.06.1993 was null and void and for permanent injunction. They also sought for judgment and decree for partition declaring that the plaintiffs together would be entitled to 3/4th share in the suit schedule property.
6. In pursuance of the suit, the Court below has issued summons to the legal representatives of defendant No.1. They appeared through their counsel. Defendant No.1(a) in the suit – Smt. Padmini filed the written statement, wherein she has admitted the relationship of plaintiffs with Thammaiah and that Thammaiah was the absolute owner of the suit schedule property. The averments made in the plaint that: Pillanna after his marriage, left his father, started living with his wife and children, but he never took care of his father or paid him any money for his living expenses; his widowed daughters looked after him well; Thammaiah was living in the property purchased by him along with his daughters;
Thammaiah registered Will (dated 03.03.1981) and subsequently, his daughters started a factory under the name and style ‘Ganga Plastic Industries’ were denied as false. Defendant No.1(a) denied the averments made in the plaint that: Thammaiah was a partner to the said industry, he raised loan from the second defendant by furnishing all the documents pertaining to the suit schedule property as surety and that he produced original registered Will before the second defendant. Defendant No.1(a) admitted that the first plaintiff’s mother died on 13.02.1993 and at that time, defendant No.1 and his father, Pillanna, attended the funeral. The averment made in the plaint that Smt. Rangamma took care of her father, Thammaiah, till her last breath was denied as false. The averment made in the plaint that at the end of the year 1993, Thammaiah was taken by the first defendant to his house and within a month of his second visit to the first defendant’s place, Thammaiah breathed his last was totally denied. Defendant No.1(a) also denied the averments made in the plaint that plaintiff Nos.2 and 3 were living in the suit schedule property as per the Will executed by late Thammaiah, and plaintiff Nos.3 and 4 are entitled for a share in the said property. It is contended by defendant No.1(a) that the grandfather of original defendant No.1, by name, Thammaiah, executed a general power of attorney in favour of the original defendant No.1 on 30.06.1993 to look after the suit schedule property and executed the registered Will on 30.06.1993. After the death of the said Thammaiah, original defendant No.1 submitted an application before the Corporation for change of khata in his name and accordingly, khata was changed in his name. The mother of plaintiff No.1 and plaintiff Nos.2 and 3 have executed release deed/s in favour of Sri Pillanna, the father of defendant No.1 and Thammaiah on 09.08.1979 and 24.05.1979 by releasing their right of partition over the suit schedule property by receiving consideration through registered release deed. The Will executed by Thammaiah in favour of his daughters was revoked in the subsequent registered Will dated 30.06.1993, which is the last Will of the testator in favour of defendant No.1. Defendant No.1(a) denied that defendant No.1 during his life time had executed Will dated 20.06.2002 bequeathing the suit schedule property in favour of the legal representative No.2 (wife of Pillanna and the mother of defendant No.1) of defendant No.1. On the contrary, it was contended that defendant No.1 had executed Will on 24.06.2002 bequeathing the property acquired under the Will dated 30.06.1993 in favour of the legal representative No.1 of defendant No.1. It is stated that after the death of defendant No.1, defendant No.1(a) became the absolute owner in possession of the suit schedule property. It is stated that she filed the suit in O.S. No.8569/2006 before the City Civil Court, Bengaluru, for the relief of partition and separate possession of the properties held by the original defendant No.1. It is contended that at the time of execution of the Will (dated 30.06.1993), the said Thammaiah was hale and healthy and he was in sound disposing state of mind and the said will was executed at the very volition of the testator.
Therefore, defendant No.1(a) sought for dismissal of the suit with costs.
7. Defendant No.1(b) – Smt. Pramila Devi, the wife of Pillanna and the mother of defendant No.1, filed separate written statement denying the allegations made in the plaint. She admitted the relationship between the parties as stated in the plaint. She stated that deceased Thammaiah was a partner in the Firm referred supra and he had pledged the properties to defendant No.2. Thammaiah was looked after by his son and thereafter by his grandson. However, she contended that Thammaiah, who was in sound state of mind, had executed the Will (dated 30.06.1993) in favour of defendant No.1. Defendant No.1(b) contended that defendant No.1 had executed Will (dated 20.06.2002) in her favour and bequeathed the property in her favour and she has become the absolute owner of the same. Plaintiffs colluding with defendant No.1(a), the wife of defendant No.1, had set up a false claim over the suit schedule property. She prayed the Court below to dismiss the suit.
8. Defendant No.2 has filed separate written statement, wherein it is contended that M/s. Ganga Plastic Industries, partnership concern constituted by Smt. Gangambika and Sri M. Sathyanaraya, to establish an SSI unit in the suit schedule property had sanctioned term loan of Rs.1,86,000/- on 31.03.1987. The suit schedule property, which was standing in the name of Thammaiah, was offered as collateral security by the said Firm / industry for availing the said loan. The said industry closed its account with the second defendant on 23.09.1999. Defendant No.1 requested defendant No.2 to release the documents pertaining to the suit schedule property, which was offered as collateral security by Sri Thammaiah, in his favour, defendant No.2 asked him to furnish no objection from the legal heirs of late Thammaiah. Defendant No.2 sent a letter to the said partnership firm / industry to state their claim. It is stated that defendant No.2 received notice dated 17.05.1999 stating that the documents given by Sri Thammaiah should not be delivered to defendant No.1. Thereafter, defendant No.1 caused reply dated 16.07.1999 stating that there was no dispute or litigation in any Court in respect of release of documents. Defendant No.1 filed writ petition in W.P. No.32210/1999 before this Court seeking direction to respondent Nos.1 and 2 therein to return the documents of title deeds deposited. This Court disposed off the said writ petition by observing that if the petitioner therein – defendant No.1 in the suit was not in a position to produce consent affidavit from the sons and daughters of Thammaiah, then he could approach the Civil Court for redressal of his grievance. Defendant No.2 stated that defendant No.1 had not produced such declaration from the competent Court and did not approach them to collect the documents given by late Thammaiah. Accordingly, the second defendant sought for dismissal of the suit with exemplary costs.
9. Based on the pleadings of the plaintiffs and defendants, the Court below has framed the following issues:
“1. Whether the plaintiffs prove that they are in possession of the suit schedule property?
2. Whether the LRs., of defendant No.1 prove that late Thammaiah executed the Will dated 30.06.93?
3. Whether L.Rs., of defendant No.1 prove that the mother of plaintiffs executed a release deed relinquishing their rights in favour of Thammaiah on 9.8.79 and 24.5.79 by receiving consideration?
4. Whether plaintiffs are entitled for the relief of declaration and permanent injunction as sought for?
5. What order or decree ?”
In support of the claim of the plaintiffs, plaintiff No.1 examined himself as P.W.1 and got marked documents as per Exs.P1 to P24. The legal representative No.2 of defendant No.1 was examined as DW.1 and three witnesses were examined as DWs.2 to 4 and documents as per Exs.D1 to D10 were got marked.
10. The Court below after hearing the arguments of learned counsel for the plaintiffs and defendants, answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and issue Nos.4 and 5 as per the final order and accordingly, decreed the suit in favour of the plaintiffs by declaring that the Will executed by late Thammaiah dated 30.06.1993 is null and void and that plaintiffs are entitled for partition and separate possession of their 3/4th share in the suit schedule property. Hence, the present appeals are filed by two legal representatives of the original defendant No.1.
11. Learned counsel for the appellant in RFA. No.1228/2012 - Defendant No.1(b) in the suit contended that the Court below has committed an error in decreeing the suit and failed to exercise the discretionary power and failed to frame issues based on the pleadings of the parties. The Court below ought to have framed the issue as to whether the plaintiffs proved that deceased Thammaiah was suffering from illness, he was not in a disposed state of mind and was not in a position to execute the Will. It is further contended that the daughters of Thammaiah i.e., mother of the first plaintiff, plaintiff Nos.2 and 3, have relinquished their right, title and interest in the suit property in favour of Pillanna, the father of the first defendant and Thammaiah. Plaintiffs have not filed rejoinder statement. The said aspect has not been considered by the Court below. The Court below also failed to consider that: no evidence was adduced by the plaintiffs to prove that Thammaiah was suffering from illness and that he was not in a position to move about. Further, the Court below failed to consider that Thammaiah was suffering from paralytic stroke and on account of the same, there must have been some shaking of his hand while writing or affixing his signatures, but the same does not mean that he was not in a position to sign the documents. The finding of the trial Court that the Will – Ex.D5 dated 30.06.1993 came into existence under suspicious circumstances is erroneous and capricious. The Court below has not uttered a single word about the admissions made in the cross-examination of P.W.1 and in spite of the same, it has considered the evidence of DWs.1 to 3. Hence, the Court below has not passed the judgment in the right perspective and the same is liable to be set aside.
12. Learned counsel for the appellant in RFA No.986/2012 also argued in the same line as argued by learned counsel for the appellant in RFA No.1228/2012 and contended that the Court below erred in holding that the Will - Ex.D5 is surrounded by suspicious circumstances. The very finding of the Court below that the Will has been executed in the suspicious circumstances is erroneous. The Court below failed to appreciate the evidence of DW.3, who is the attesting witness and in the absence of any suspicious circumstance, the Court below has come to an erroneous conclusion that the Will came into existence in suspicious circumstances and failed to take note of the very object of Section 68 of the Indian Evidence Act, 1872, i.e., with regard to attestation of the document and same has been proved by examining the witnesses and in spite of that, the Court below failed to consider the material on record. Learned trial Judge failed to appreciate that the purpose of making the Will is to deviate from the natural succession. The deceased, Sri B.S. Thammaiah, died leaving behind the plaintiffs and defendant Nos.1(a) and (b) and if the suit schedule property were to be succeeded equally among the surviving legal heirs, there was no necessity for Thammaiah to execute the Will as equal share is given to Class I heirs. Learned counsel prayed this Court to set aside the impugned judgment and decree of the Court below.
13. Learned counsels appearing for the respective appellant in these appeals in their arguments have contended that the lower Court has erroneously recognized the second Will and discarded the third Will. Even though there was no pleading in the plaint with regard to the suspicious circumstances and sound state of mind of the executant at the time of execution of the Will, the only contention of the plaintiffs in the suit is that the very execution of the third Will was not informed to daughters of Thammaiah. Learned counsel would contend that the first Will (dated 24.06.1974) was executed by Thammaiah bequeathing the suit property in favour of his daughter, Smt. Rangamma, and his son, Pillanna. In the second Will, Thammaiah bequeathed the suit property in favour of all his children and in the third Will, the said property was bequeathed only in favour of his grandson – defendant No.1. Learned counsel would contend that while executing the third Will, the executant had not assigned any reason for bequeathing the properties in favour of his grandson and also no reason was assigned as to why his other children were left out. The Court below failed to appreciate the said aspect and committed an error in decreeing the suit. Learned counsel also would contend that Smt. Rangamma, the daughter of Thammaiah, executed release deed dated 09.08.1979 as per Ex.D9 in favour of Thammaiah and Pillanna releasing her right in respect of the suit property and similarly, plaintiff Nos.2 and 3 have executed release deed dated 24.05.1979 – Ex.D10 in favour of the executant, Thammaiah, and Pillanna. The evidence of DW.3 satisfies the requirements of Section 63(c) of the Indian Succession Act, 1925, and the very finding of the trial Court that the Will is shrouded with suspicious circumstances is erroneous. The legal representatives of defendant No.1 have proved the very execution of the Will dated 30.06.1993 by examining DWs.2 and 3. Smt. T. Shantamma and Smt. Shivamma, daughters of Thammaiah have relinquished their rights in the suit schedule property earlier and the question of they getting the share in the said property by succession does not arise.
14. Learned counsel for the appellant in RFA No.986/2012 in support of his arguments, relied upon the judgment of the Hon`ble Apex Court rendered in the case of MADHUKAR D. SHENDE V. TARABAI ABA SHEDAGE reported in AIR 2002 Supreme Court 637 regarding suspicious circumstances and contended that there was no specific plea in the plaint with regard to the suspicious circumstances surrounding the Will. Hence, the trial Judge ought not to have come to the conclusion that the Will is shrouded with suspicious circumstances.
15. Learned counsel relied upon the judgment of the Hon`ble Apex Court rendered in the case of PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARATNAM AND OTHERS reported in AIR 2005 Supreme Court 4362 and would contend that the beneficiary who being the propounder of the Will, onus will be on him to prove execution of the Will. Thereafter, the onus would shift to the contestant respondents opposing the Will. They have to establish their case of undue influence or coercion, then the onus will shift to the appellants to remove the suspicious circumstances, if any. Learned counsel relying upon the said judgment would contend that no evidence has been led by the plaintiffs to show that the original defendant No.1 had committed any fraud or exercised any undue influence on the executant, Sri Thammaiah, at the time of execution of the Will. No evidence was adduced by the plaintiffs to show that the testator was not in sound state of mind at the time of execution of the Will – Ex.D5. In fact, the finding of the Court below is that Thammaiah was having sound mind. Learned counsel relied upon the principles laid down by the Hon`ble Apex Court in para No.21 of the said judgment and would contend that in the present case also, there was no evidence with regard to the suspicious circumstances surrounding the Will – Ex.D5 and the plaintiffs have also not proved that the testator was not in sound state of mind at the time of execution of the Will. Learned counsel also relied upon paragraph No.25 of the said judgment with regard to Section 68 of the Indian Evidence Act, 1872, and Section 63(c) of the Indian Succession Act, 1925, and that the same has been complied.
16. Further, Learned counsel has relied upon the judgment rendered by this Court in the case of Mrs. MAYA AKBER v. Mrs. RANI MENON reported in 2014(2) KCCR 1105 and would contend that in the said case, the witnesses were examined to speak with regard to the fact that when the testator signed the Will, all of them were simultaneously present and in this case also, DWs.2 and 3 have clearly deposed before the Court that at the instance of the executant, they came and attested the document. Learned counsel brought to my notice para No.28 of the said judgment with regard to execution of the Will and proving of the Will.
17. Learned counsel also relied upon the judgment rendered by Dharwad Bench of this Court in the case of KRISHNA SHANKAR MIRJANKAR v. VASANTALATA KOM VIMALANAND MIRJANKAR AND OTHERS reported in 2014(3) KCCR 2067 regarding Section 63 of the Indian Succession Act, 1925, and referring to the said judgment, he would contend that this Court has observed that though the testatrix was 80 years of age and her hands were shaking at the time of execution of the Will, there was nothing to show that she was incapable of understanding the contents of the Will and further held that merely because beneficiary was present at the time of execution of the Will, it cannot be said that she had actively participated in the execution of the Will. Learned counsel would contend that the Court below taking note of mere presence of the beneficiary has erroneously come to the conclusion that there are suspicious circumstances surrounding the Will and the said finding is erroneous.
18. Learned counsel also relied upon the judgment rendered by Madras High Court (Madurai Bench) in the case of A.C. MURUGESAN v. C. VELUCHAMY reported in (2018) 7 MLJ 188 and brought to the notice of this Court para No.44 of the said judgment, wherein it is observed that the sole beneficiary under the Will having signed the same as one of the two attesting witnesses and having reiterated by deposing about the same in the trial Court would clearly show that it is a declaration of the intention of the testator to revoke the Will. This is more so, as the sole beneficiary under the testament has been taken into confidence. Therefore, the declaration of intention to revoke Ex.B1 = Ex.A.29 - Will can clearly be inferred from the manner in which Ex.A36 has been executed. Learned counsel referring to this judgment would contend that mere presence of the beneficiary at the time of execution of the Will by the executant will not take away the case of the defence.
19. Learned counsel also relied upon the judgment of the Hon`ble Supreme Court reported in the case of JUMMA MASJID, MERCARA V. KODIMANIANDRA DEVIAH AND OTHERS reported in AIR 1962 Supreme Court 847 and brought to my notice para No.9 of the said judgment with regard to Section 43 of the Transfer of Property Act, 1882, and would contend that Section 6(a) and Section 43 relate to two different subjects, and there is no necessary conflict between them. Section 6(a) deals with certain kinds of interest in property mentioned therein, and prohibits transfer simplicitor of those interests. Section 43 deals with representations as to title made by a transferor, who had no title at the time of transfer and provides that the transfer was fastened itself on the title, which the transferor subsequently acquires. Referring to the said judgment, learned counsel would contend that Section 6(a) enacts a rule of substantive law while Section 43 indicates a rule of estoppel, which is one of evidence.
20. Learned counsel also relied upon the judgment of the Hon`ble Supreme Court in the case of THAYYIL MAMMO AND ANOTHER v. KOTTIATH RAMUNNI AND OTHERS reported in AIR 1966 Supreme Court 337 and brought to my notice para No.9 of the said judgment, wherein the Apex Court has referred to the judgment of Privy Council in the case of Mt. Oodey Koowur v. Mt.
Ladoo, 13 Moo Ind App 585 (PC) and has observed that the said case is an authority for the proposition that a bare admission in a document that the executant has no interest in a property, made without any consideration cannot pass his subsequently acquired title to the property.
21. Learned counsel also relied upon the judgment of the High Court of Kerala in the case of R. SUBBARAJ v.
S. PANDIYAMMAL AND ANOTHER reported in 2013(4) KLJ 545 and brought to my notice the principles laid down in the judgment with reference to Section 6A of the Transfer of Property Act, 1882, which deals with cases of the nature of “Spes Successionis“ a mere chance of succession. Learned counsel would contend that the daughters of Thammaiah have also executed release deeds in favour of their father in the year 1979 itself and they have relinquished their right in the suit schedule property and when such being the circumstance, the question of granting the share in favour of the daughters of Thammaiah also does not arise. He contended that the Court below has not taken note of the said fact into consideration while decreeing the suit.
22. On the other hand, learned counsel appearing for respondents 1 to 3 / plaintiffs in the suit in his arguments vehemently contended that the Court below has considered the evidence available on record. In the first instance, the plaintiffs sought for the relief of declaration to declare Ex.D5 – Will is null and void and later, they sought for the relief of partition. Learned counsel would contend that there is no dispute that the suit schedule property was purchased by Thammaiah on 24.01.1962 in terms of Ex.P6 and he passed away on 01.02.1994. It is contended that at the time of execution of the Will, Ex.D5, Thammaiah was not having sound state of mind and the defendants have played fraud and obtained Will – Ex.D5. Defendant No.1(b) also relied upon the unregistered Will dated 20.06.2002 executed by her husband in terms of Ex.D8. Learned counsel would contend that the witness, DW.2, has only identified the executant and he is not an attesting witness to the Will – Ex.D5. Further, it has emerged in the evidence of DW.2 that the beneficiary and his parents were also present at the time of executing the Will – Ex.D5. DW.3 in his cross- examination has categorically admitted that parents of beneficiary under the Will was also present at the time of executing the said document and DW.3 only identifies the signature and not the executant and he was not present and participated in preparation of the Will. Learned counsel would contend that the provisions of Section 63(c) of the Indian Succession Act, 1925, have not been complied. Learned counsel would also contend that the execution of the release deeds as per Exs.D9 and D10 executed by daughters of Thammaiah is not in dispute, but succession is not opened. Further, he would contend that release deeds executed by daughters of Thammaiah are not in respect of the suit schedule property. Further, he would contend that daughters of Thammaiah have no right in respect of the suit schedule property to execute any release deed since the same is the self-acquired property of Sri Thammaiah. It is further contended that in the Will executed as per Ex.D5, it is nowhere stated as to why the other children of Thammaiah were excluded. Hence, learned counsel contended that the impugned judgment of the trial Court cannot be interfered with.
23. Learned counsel for respondent Nos.1 to 3 in support of his contention, relied upon the judgment rendered by the Hon`ble Apex Court in the case of CHINNATHAYI v. KULASEKARA PANDIYA NAICKER AND OTHERS reported in AIR 1952 Supreme Court 29 and would contend that the person in whom the inheritance to impartible estate vests is competent to alienate a part of it. In the present case, daughters of Thammaiah were not having any right to execute the release deed since the property is the self-acquired property of their father and it does not change the succession in view of the release deed. He also contended that the release deed is not in respect of the suit schedule property.
24. Learned counsel also relied upon the judgment rendered by the Hon`ble Apex Court in the case of BALATHANDAYUTHAM AND ANOTHER v.
EZHILARASAN reported in 2010(5) Supreme Court Cases 770 and would contend that the onus of proving the genuineness and due execution of the Will is on its propounder. In the said case, the Hon`ble Apex Court observed that there being suspicious circumstances and propounder trying to prove that the subsequent will revoked the earlier will and not a single witness had come forward to prove unregistered subsequent Will when attestors being alive and suspicion surrounding mental capacity of unwell testator had not been removed, it was held on facts that the subsequent Wills were not proved.
25. Learned counsel also relied upon the judgment rendered by the Hon`ble Apex Court in the case of BALATHANDAYUTHAM AND ANOTHER v.
EZHILARASAN reported in 2010(5) Supreme Court Cases 770 and would contend that the onus of proving the genuineness and due execution of the Will is on its propounder. In the said case, the Hon`ble Apex Court has observed that there were suspicious circumstances and propounder was trying to prove that the subsequent will revoked the earlier will and not a single witness had come forward to prove unregistered subsequent Will and when attestors being alive and suspicion surrounding mental capacity of unwell testator had not been removed, it was held on facts that the subsequent Wills were not proved. Learned counsel would contend that the onus to prove due execution of the Will in terms of Section 68 of the Indian Evidence Act, 1872, and Section 63(c) of the Indian Succession Act, 1925, and to remove the suspicious circumstances is on the propounder of the Will and the same has not been done in the case on hand.
26. Learned counsel also relied upon the judgment rendered by the Hon`ble Apex Court in the case of S.R.
SRINIVASA AND OTHERS v. S. PADMAVATHAMMA reported in (2010) 5 Supreme Court Cases 274, and would contend that the liability is on the propounder of the Will to dispel the suspicious circumstances and it was necessary for the propounder of the Will to explain the execution of the Will, which was shrouded by suspicious circumstances and mere registration of the Will by itself is not sufficient to remove the suspicion.
27. Further, learned counsel relied upon the judgment rendered by this Court in the case of SRI J.T. SURAPPA AND ANOTHER v. SRI SATCHIDHANANDENDRA SARASWATHI SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS reported in ILR 2008 KAR 2115. Referring to para No.24 of the judgment, learned counsel would contend that the propounder of the Will has to prove the very execution of the Will and explain as to why the other interested heirs have been disinherited and whether the testator was having sound state of mind at the time of execution of the Will and the same was not surrounded with suspicious circumstances. In the case on hand, the propounder of the Will has not fulfilled the aforesaid requirements.
28. Learned counsel also relied upon the judgment rendered by the Hon`ble Apex Court in the case of RAJAGOPAL PILLAI AND ANOTHER v. PAKKIAM AMMAL AND OTHERSreported in AIR 1975 SUPREME COURT 895 regarding the release of right in the property and brought to my notice para No.6 of the said judgment, wherein it is held as under:
“It is a well settled rule of interpretation of deeds of release that however wide and general the covenant of release may be, its operation must be restricted to the rights which are in the contemplation or in controversy between the parties and would not cover or comprehend rights which are never in the minds of the parties at that time.”
Learned counsel referring to the said judgment would contend that the daughters of Thammaiah had no right in the suit schedule property and hence, the question of they executing the release deeds releasing their right in the said property does not arise.
29. Learned counsel for respondent Nos.1 to 3 would contend that the Court below has considered the material available on record and has rightly decreed the suit of the plaintiffs by declaring that the Will – Ex.D5 executed by the executant, Thammaiah, is null and void. The Court below has taken note of the suspicious circumstances surrounding the Will – Ex.D5 and also noticed the fact that the beneficiary was present at the time of execution of the Will and he had participated in obtaining Ex.D5. Hence, learned counsel submitted that there are no grounds to interfere with the impugned judgment of the trial Court.
30. Having heard the arguments of the learned counsel for the respective appellant in these appeals and learned counsel appearing for respondents in these appeals, the points that arises for consideration in these appeals are:
1. Whether the Court below has committed an error in declaring that the Will -
Ex.D5 has come into existence under suspicious circumstances?
2. Whether the Court below has committed an error in granting 3/4thshare in the suit schedule property in favour of the plaintiffs?
3. Whether the judgment of the trial Court requires interference of this Court by coming to the conclusion that the same is erroneous ?
4. What order?
31. Point Nos.1 to 3: These points are taken up for consideration together since the issue involved in these appeals is with regard to the very execution of the Will, which is marked as Ex.D5, by Thammaiah. If it is considered that due execution of the Will is proved and it is not shrouded with suspicious circumstances, then this Court has to come to the conclusion that the Court below has committed an error in decreeing the suit.
32. Before considering the question of law, it is appropriate to mention in nut shell the case of the plaintiffs before the Court below. It is the case of the plaintiffs that the suit schedule property originally belonged to one Thammaiah. It is not in dispute that Thammaiah executed three Wills during his lifetime. The first Will is of the year 1974. The second Will is of the year 1981 and the third Will is of the year 1993. It is the contention of the plaintiffs that defendants have obtained the Will – Ex.D5 fraudulently from Thammaiah and there was no reason to disinherit them as also the other legal heirs of Thammaiah. It is contended that Thammaiah, who was physically and mentally sick, was taken by defendant No.1 to register the Will. Thammaiah did not intimate the execution of the Will in favour of defendant No.1 to the second defendant, but it was later informed by defendant No.1 to the second defendant after the demise of Thammaiah deliberately. Thammaiah was aged about 85 years at the time of execution of the Will and he had suffered paralytic stroke, on account of which, he was not able to move about and also not in a position to understand the contents of the Will – Ex.D5. It is further contended that Smt. Rangamma, one of the daughters of Thammaiah, passed away on 13.02.1993 and till her death, she was looking after Thammaiah. After the death of Smt. Rangamma, defendant No.1 took Thammaiah to his house under the pretext of providing treatment to him for paralytic stroke and defendant No.1 with an ill-intention to knock off the suit schedule property got prepared the Will dated 30.06.1993 and the said Will is shrouded with suspicious circumstances.
33. The plaintiff in order to prove the case of the plaintiffs, examined P.W.1, who is the plaintiff in the case and he has reiterated the averments made in the plaint by way of affidavit and also got marked the documents Exs.P1 to P24. P.W.1 was subjected to cross-examination. In his cross-examination, it is elicited that the Ganga Factory had taken loan from defendant No.2 - Karnataka State Financial Corporation (for short ‘KSFC’) and as on the date of availing loan, Ganga Plastics was a partnership firm and himself and his wife were partners. The executant, Sri Thammaiah, was treated as second partner by the KSFC. Thammaiah never worked on behalf of Ganga Industry and he was not a partner. P.W.1 also admitted that: the suit schedule property was pledged to KSFC; the said property was also bequeathed in favour of Smt. Rangamma; Thammaiah had pledged Ex.P6 – sale deed to KSFC and Ganga plastic industry was set up in suit schedule property. It is further elicited that in terms of Ex.P23, rent of the shed, where factory was set up, was fixed at Rs.300/- and PW.1 volunteered that it was a formal document. It was suggested to him that they never resided in the suit schedule property. The said suggestion was denied. However, PW.1 has admitted that the executant, Sri Thammaiah, had suffered paralytic stroke (in the year 1958) and he was not able to move. He also admitted that Thammaiah executed the first Will in the year 1974 and the same was cancelled by the subsequent Will dated 03.03.1981 bequeathing the property in favour of all his four children. It is elicited that Thammaiah was not residing with Pillanna at any point of time and similarly, Thammaiah did not live with defendant No.1. PW.1 has categorically admitted that Thammaiah was staying along with his mother till her death. Thereafter, the first defendant took the said Thammaiah. He claimed that Thammaiah passed away in the house of his daughter at Hegganahalli village. He has stated that he came to know about the Will dated 30.06.1993 when he received notice, which was issued by the KSFC. He further admitted that he did not obtain copy of the said Will while filing the suit and the same was obtained subsequently. It was suggested to him that Thammaiah was having sound state of mind to write the Will. The said suggestion was denied. He has stated that he did not know that his mother had executed release deed dated 09.08.1979 in favour of Thammaiah and Pillanna. He has admitted that: in the suit schedule property except 20 feet x 20 feet the remaining place is vacant; he did not give any complaint to the Police that the Will was obtained forcibly; khata of the suit property was standing in the name of defendant No.1; as per the document, Ex.D12, shown to him (PW.1) the first defendant’s name was entered in the record maintained by the Corporation and also the property was assessed in the name of defendant No.1. It is elicited that the suit schedule property is a valuable property. He was further examined and subject to further cross- examination. In the cross-examination of PW.1 by learned counsel for defendant No.1(b), it is elicited that he cannot tell as to who prepared the Will dated 03.03.1981, but his grandfather told about the execution of the Will on the same day in the evening and the same was in the custody of the executant. The executant himself pledged the said document while availing loan from the KSFC. It was suggested to him that defendant No.1, the beneficiary under the Will dated 30.06.1993, had executed the Will dated 20.06.2002 in favour of his wife. He has stated that he did not know about the same.
34. Defendant No.1(b) was examined as DW.1. In her examination-in-chief by way of affidavit, shehas reiterated the contentions taken by her in the written statement. She has got marked the documents as per Exs.D5 to D8. In her cross-examination, DW.1 has admitted that the suit schedule property was purchased by Thammaiah from Ramakrishnappa in the year 1962. There was no dispute with regard to the relationship between the parties. DW.1 also admitted that when the children were small, the executant, Sri Thammaiah, was running a shop and she did not know how he got the money to run the business. DW.1 has further admitted that she was not married at the time when Smt. Rangamma and her husband lived in the house of Thammaiah and she was informed about the said fact by Thammaiah. Rangamma and her husband stayed in the house of Thammaiah only for one week. Thammaiah passed away on 01.02.1994. At that time, herself, her husband and her son i.e., defendant No.1 were living together. She has stated that she had ration cards for the period from 1960 to 1990. It was suggested to her that Smt. Rangamma was staying along with her father till her death. The said suggestion was denied. The suit schedule property was purchased prior to her marriage. She has admitted the execution of the Will dated 24.06.1974, but she claims that same was cancelled in the year 1981 (28.02.1981). DW.1 claims that herself, her husband and Thammaiah lived together in a house in Jayanagar. She did not have any document to show that her father-in-law lived with them. DW.1 has admitted that since the year 1962, she along with her husband was staying in Jayanagar and they were running a shop in Jayanagar, but she claims that Thammaiah was also staying along with them. It was suggested that in the Will, it is mentioned that her husband was staying separately along with the family. She has denied the said suggestion. Further, she admitted that in the Will (dated 03.03.1981), it is mentioned that Thammaiah was having same cordiality with all his children and all his children were having equal share in the property. She has further admitted that in the said Will, the executant had given equal share to all the family members, but claims that the said Will was cancelled. However, DW.1 has admitted that during the life time of Sri Thammaiah, he was showing equal love and affection towards all his children. She has further admitted that the other two daughters of Thammaiah were also coming and enquiring about the health of Thammaiah. It was suggested to her that Smt. Rangamma was living along with Thammaiah. The said suggestion was denied. She has stated that Smt. Rangamma was staying along with her son. DW.1 has admitted that P.W.1 is the only son of Smt. Rangamma, but she claims that PW.1 grew up in the rental house and she did not know the number of the said house. It was suggested to her that P.W.1 and Smt. Rangamma were staying along with Thammaiah in the suit schedule property. She has denied the said suggestion. It is elicited that Ex.D5 was in her house. She has admitted that at the time of execution of the Will - Ex.D5, herself, her husband and her son were present. It is elicited that she could not say as to who got prepared the Will, but she claims that Prabhakar Shetty, Gangaiah G and Venkatesh have signed the same in her presence. It is elicited that at the time of executing Ex.D5, the executant was having same confidence in his daughters as he had in his son. DW.1 has admitted that Thammaiah suffered paralytic stroke in the year 1974 itself, but she volunteered that he was able to move. It is further elicited that in between 03.03.1981 to 30.06.1993, there was no galata / quarrel among the family members. However, she volunteers that subsequent to the year 1981, Thammaiah was not having confidence in his daughters and claims that such feeling had developed in the year 1982. It is elicited that in the Will executed in the year 1993, there was no mention of the fact as to why the executant was not believing his daughters. It was suggested that Smt. Rangamma along with her son and daughter-in-law was residing in the suit schedule property till her death. The said suggestion was denied. However, she volunteers that they had set up a factory and staying there. DW.1 claims that the Will was executed by Thammaiah in the year 1993 bequeathing the suit property in favour of her son, Yogish Govindaraju, and the said Will was given to her by Thammaiah. She has stated that her son passed away in the year 1994. It is elicited that her father-in-law called the witnesses to Sub- Registrar’s office and obtained their signatures to Ex.D5 - Will at around 3:30 to 4:00 p.m. and the Will was registered at 4 p.m. She has admitted that the other attesting witness, Sri Venkatesh, is her sister’s husband. DW.1 has also admitted that Thammaiah passed away on 01.02.1994 and her son, Yogesh Govindaraju, passed away on 22.07.2002. It is elicited that Thammaiah, Pillanna and Yogesh Govindaraj discussed and prepared the Will.
35. DW.2 has stated in his evidence that on 30.06.1993, the said Thammaiah had asked him to accompany him to the office of the Sub-Registrar stating that he had prepared the Will by himself and he was going to execute the Will in the office of the Sub-Registrar. Thammaiah had asked Gangaiah and M.Venkatesh to come to the Sub-Registrar office. Thammaiah had signed the Will on all the four pages in his presence and also in the presence of Gangaiah and M. Venkatesh. He has stated that M. Venkatesh signed the Will as a witness in the presence of Thammaiah, himself and Gangaiah. Thereafter, Thammaiah affixed his signature and thumb impression in their presence before the Sub-Registrar to the document and admitted execution of the same. DW.1 in his cross-examination, has admitted that three to four months prior to 30.06.1993, Thammaiah was telling him that he would have to come to the Sub-Registrar’s office in connection with registration of Will. On the previous day, Thammaiah asked him to come to Sub-Registrar office for registration of the Will on the next day (30.06.1993). He admitted that: he did not know to read and write in English and on 30.06.1993, he went alone to the Sub-Registrar’s office. He admitted that if it is mentioned that he accompanied Thimmaiah, Venkatesh and Gangaiah to Sub- Registrar’s office, the same is false. At the time he went to Sub-Registrar’s office, Thammaiah had got the Will ready, however, he had not presented the same for registration. It is elicited that Sri Thammaiah, Pillanna, Pramila Devi, Yogesh Govinda Raju, Venkatesh and Gangaiah were already present at the Sub-Registrar’s office. In his further cross-examination, DW.2 has admitted that in the Will, which was read over to him, it is not stated that Thammaiah had suffered paralytic stroke. He has stated that Sri Thammaiah, has signed the document, but he admitted that he did not know the contents of Ex.D5. It was suggested to him that Thammaiah had not signed Ex.D5 in his presence. He has denied the said suggestion.
36. DW.3 is another witness. In his evidence, he has stated that Thammaiah executed the Will in favour of his grandson, Yogish Govindaraj, and at the request of Thammaiah, he had attested the Will. DW.2 also had signed as an identifying witness and the executant has affixed his signature and his thumb impression in his presence before the Sub-Registrar. In his cross-
examination, it is elicited that he signed the Will in the Sub-Registrar’s office on 30.06.1993 and he did not know as to whether the Will was registered or not after he affixed his signature to the Will. However, he claimed that at first, he signed the Will. Thereafter, witness, Venkatesh, has signed the Will and both of them came out. It is further elicited that at first, Thammaiah signed the Will and same was identified by DW.2 and after that, he has signed the Will. He has stated that he was taken to Sub-Registrar’s office and his signature was obtained on the Will. He did not know as to who prepared the Will and as to whether Thammaiah had suffered paralytic stroke or not, but he claimed that it was mentioned in the Will that Thammaiah had suffered paralytic stroke. He did not know as to when Thammaiah had suffered paralytic stroke. He also admitted that in the Sub-Registrar’s office, Yogesh Govinda Raju and Smt.Pramila Devi were present and so also, Pillanna was also there. He has further admitted that he did not know the contents of the Will. He was asked to come and sign in the Sub-Registrar’s office and he went and signed and he had no acquaintance with the witness, Venkatesh. In the cross-examination, he has admitted that the executant did not sign the Will in his presence and also he did not have any acquaintance with the said Thammaiah. When he went near the Sub-Registrar’s office, he was called and his signature was obtained.
37. DW.4 in her evidence, she claims that the Will dated 30.06.1993 was executed by Thammaiah in favour of her husband. Her husband, in turn, executed Will in her favour. Smt. Rangamma, plaintiff Nos.2 and 3 (wrongly stated as defendant Nos.2 and 3 in the affidavit of DW.4) have executed registered release deeds dated 09.08.1979 and 24.05.1979, which are marked as Exs.D9 and D10 respectively. In the cross-examination, she has admitted that her mother-in-law denied the execution of the Will in her favour by her husband. DW.4 has further admitted that at the time when she filed the written statement, her relationship was not good with her mother- in-law. Further, she has stated that same is not correct.
However, she has admitted that herself and her mother-in- law are living separately. It was suggested to her that after filing of the suit, both herself and mother-in-law filed false affidavits with a view to knock off the suit property. She has denied the said suggestion.
38. Now, let this Court consider the material on record, both oral and documentary evidence. The plaintiffs in order to prove the case, examined plaintiff No.1 as P.W.1 and defendant Nos.1(a) – Smt. Pramila Devi and 1(b) – Smt. Padmini have been examined as DWs.1 and 4 respectively. Defendants in order to prove the Will have been examined DWs.2 and 3. It is to be noted that there is no dispute with regard to the fact that the suit schedule property was purchased by Thammaiah in the year 1962 in terms of Ex.P6. It is also not in dispute that the original documents and also the earlier Will of the year 1981 was pledged by Thammaiah with KSFC when the loan was availed from the KSFC to do the business in the suit schedule premises. Though the defendants have denied that the plaintiffs are in possession of the suit property, in one breath they say that they were not in possession of the said property and in another breath, they say that they are doing business in the schedule premises. It is pertinent to note that defendants have relied upon Ex.D9, which is copy of release deed dated 09.08.1979 executed by Smt. Rangamma and Ex.D10, which is copy of release dated 24.05.1979 executed by Smt. T. Shantamma and Smt. T. Shivamma, daughters of Thammaiah, to show that daughters of Thammaiah had released their rights in favour of Thammaiah and Pillanna. The said documents are denied by the plaintiffs. Those documents are registered documents. It is pertinent to note that the parties have not disputed the earlier Will executed by Thammaiah in the year 1974 and also the Will executed by him in the year 1981. Plaintiffs have only disputed the subsequent Will dated 30.06.1993 contending that the same was shrouded with suspicious circumstances.
39. Now, taking note of the material available before the Court, it is clear that the property originally belonged to Thammaiah and the same is his self-acquired property and no material is placed before the Court that same is not his self-acquired property. There is no dispute with regard to the relationship between the parties and the only dispute is with regard to the execution of the Will dated 30.06.1993. The parties did not also dispute the cancellation of the earlier Will executed by Thammaiah in the year 1974. The Will, Ex.D5, which is the subject matter of the suit, came into existence in the year 1993 and whether that document came into existence under suspicious circumstances as contended by the plaintiffs has to be considered. The propounder of the Will has to prove the Will and dispel the suspicious circumstances surrounding the Will.
40. The defendants have examined two witnesses, one is Prabhakar Shetty, who has identified the executant before the Sub-Registrar. Defendants have also relied upon the evidence of the other witness i.e, Gangaiah. It has emerged in the evidence that the said Venkatesh is also relative of the beneficiary under the Will - Ex.D5. The independent witnesses are DWs.2 and 3.
41. Now, let this Court consider the evidence of DWs.2 and 3. On perusal of the evidence of DWs.2 and 3, it discloses that they have categorically admitted that they do not know the contents of the Will - Ex.D5. It is further elicited in the cross-examination of DW.3 that after affixing the signature to the said document, himself and witness Venkatesh came out of the Sub-Registrar’s office and also they had no knowledge as to whether the said Will was registered or not. It is elicited in the cross-examination of DW.3 that in his presence, the executant, Sri Thammaiah, did not sign the Will and further DW.3, who is the attesting witness, has admitted that he was not having any acquaintance with the executant. He has further admitted that he was called to come and sign the Will in the Sub- Registrar’s office and accordingly, he came and signed the same. He was not having any acquaintance with attesting witness, Venkatesh. DWs.1 to 4 have stated that in the office of the Sub-Registrar, beneficiary, Yogish Govinda Raju and also his parents were present at the time of executing the Will. It is pertinent to note that DW.1 in her cross-examination though she has stated that Smt. Rangamma was residing along with the executant for a week, she has categorically admitted that Smt. Rangamma was having only one son and claims that he was residing in a rented house, but in page No.12 of the evidence i.e., in her cross-examination, she has volunteered that plaintiffs are running the factory and they are in possession of the suit schedule property. DW.1 tried to give answer that the executant was staying along with them, but from the contents of the Will of the year 1981, it is clear that the executant was staying along with his daughter, Smt. Rangamma. It is also an admitted fact that in the said Will, the executant has given equal share in his property to all his children. DW.1 has also admitted in her cross- examination that the executant, Thammaiah, was showing equal love towards all his four children. DW.1 has further admitted that the remaining two daughters were also enquiring about the health of the executant and visiting him. DW.1 has admitted that she along with her husband, Pillanna, and her son was present at the time of execution of Ex.D5. She did not know as to where the Will – Ex.D5 was got prepared and who prepared it, but only claims that DWs.2 and 3 have signed as witnesses to the said Will. It is pertinent to note that DW.1 has categorically admitted that the executant, Sri Thammaiah, while writing the Will, Ex.D5, was having the same love and affection towards all his daughters as he had towards his son. DW.1 has also admitted that the executant had suffered paralysis in the year 1974 itself.
42. It is important to consider the evidence of the witnesses who have been examined to prove the execution of the Will – Ex.D5. DW.2 has stated that he went to Sub- Registrar’s office on 30.06.1993 at about 2:30 p.m. and by that time, already Will was got prepared by the executant.
DW.2 has claimed that Thammaiah had not suffered paralysis. He has further admitted that in the Will, which was read over to him, there was no mention of the fact that Thammaiah had suffered paralytic stroke. Though DW.1 admitted that Thammaiah was suffering from paralysis in the year 1974, DW.2 – witness was not in a position to say exactly about the paralysis suffered by Thammaiah. DW.3 is the attesting witness to the Will – Ex.D5. Though he claimed that he has signed the Will in the presence of the executant, Sri Thimmaiah, he has stated that he did not know as to whether Thammaiah had suffered paralysis or not. However, he claimed that it was mentioned in the Will that Thammaiah had suffered paralysis, but he did not know as to when Thammaiah suffered paralysis.
43. No doubt in the evidence of P.W.1, it is elicited that he did not know about the Will dated 30.06.1993 and he came to know about the same only after he received notice from the second defendant - KSFC. Though P.W.1 has denied the very execution of the release deeds by the daughters of Thammaiah stating that he did not know about the same. However, he did not dispute the documents Exs.D9 and D10, release deeds. P.W.1 has admitted that he did not give any complaint to the Police regarding Will Ex.D5 having been obtained from Thammaiah fraudulently.
44. Having considered the evidence of the witnesses and keeping in mind the principles laid down in the judgments referred by learned counsel for the appellant in both the appeals as well as learned counsel for respondents in these appeals, it is settled law that if any person challenges the Will and takes up a contention that the Will was obtained by fraud and the same was shrouded with suspicious circumstances, same has to be dispelled by leading cogent evidence by propounder of the Will. No doubt, the trial Court while appreciating the evidence has come to the conclusion that the beneficiary of the Will and his parents were also present at the time of execution of the Will – Ex.D5. In the judgment rendered by Dharwad Bench of this Court in the case of KRISHNA SHANKAR MIRJANKAR (referred supra), it is observed that merely because the beneficiary was present at the time of execution of the Will, it cannot be held that the beneficiary had actively participated in the execution of the Will. However, to form an opinion that there is no suspicious circumstance.
45. In the case on hand, it has emerged in the evidence that the executant was staying along with Smt. Rangamma, who is one of the daughters of the executant till her death and thereafter, the executant was taken to the house of defendant No.1. It has emerged in the evidence that the beneficiary’s parents were also present at the time of execution of the Will. Both DWs.2 and 3, identifying witness and the attesting witness were not aware of the contents of Ex.D5. It is also pertinent to note that in the evidence of DW.3, it is clear that he was not having any acquaintance with the executant and only he has signed the said document in the office of the Sub- Registrar. It is also important to note that it has emerged in the evidence that the executant was having similar love and affection towards his son and daughters. No doubt in Ex.D5, Thammaiah has stated the reason for executing the Will as beneficiary had taken care of him. In the case on hand, it has to be noted that the executant had suffered paralysis in the year 1974 itself and no material was placed before the Court below to show that Thammaiah was taken care by the beneficiary and his parents after the paralysis attack.
46. Though they claim that they have taken care of Thammaiah, it is evident from the records that deceased Smt. Rangamma was taking care of the executant till her death and she passed away on 13.02.1993. It is pertinent to note that the Will - Ex.D5 came into existence on 30.06.1993 within a span of three to four months from the date (13.02.1993) of death of Smt. Rangamma and when the first defendant took the executant to his house. Apart from that, the attesting witnesses have admitted that they did not know the contents of Ex.D5. Both DWs.2 and 3 have gone to the extent of saying that even they were not aware of the paralysis suffered by the executant. They stated that they had identified the signature of the executant at the time of registration of the Will - Ex.D5. They have not spoken anything about the status of mind of the executant and paralytic stroke suffered by him. However, in evidence they have stated that the executant was having sound state of mind. The same cannot be accepted. Hence, it is clear that the very execution of the Will in favour of the beneficiary i.e., grandson of Thammaiah is shrouded with suspicious circumstances. It is pertinent to note that in the earlier Will of 1981, the executant, Thammaiah, had bequeathed the suit property equally to all his children including his daughters and no material is placed on record to show as to what made Thammaiah to change his intention and to execute another Will bequeathing the suit property in favour of his grandson. It is evident from the records that the executant was having same love and affection towards all his children and there was no special circumstance to execute the Will in favour of his only grandson, that too within a period of three to four months after he went to the house of the beneficiary i.e., defendant No.1. The Court below has also discussed that there was no reason for Thammaiah to disinherit his legal heirs other than his grandson. It is categorically admitted by DW.1 that the other two daughters of Thammaiah were visiting her house and enquiring about the health of the executant. When such being the case, what made the executant to execute the Will - Ex.D5 in favour of his grandson is also shrouded with suspicious circumstances.
47. Having considered the material on record and also the evidence of DWs.1 to 4, it is clear that the same supports the case of the plaintiffs and there is no circumstance to support the case of the beneficiary under the Will - Ex.D5 or his legal heirs. The fact that the beneficiary and his parents were present on the date of execution of the Will is also not in dispute. There is a clear admission in the evidence of DWs.1 to 4 that the executant was suffering from paralysis and he was taken to sub- Registrar's office by the beneficiary and his parents. No doubt in the Will, the reason cited by Thammaiah for executing the Will in favour of his grandson is that he looked after him, but DWs.2 and 3 have categorically stated in their evidence that they were not present at the time of preparation of the Will and by the time they reached the Sub-Registrar's office, Will had already been got prepared by Thammaiah. They did not know from whom the executant got prepared the Will and the same also leads doubt about active participation of beneficiary and his parents. The participation is also admitted in their cross-examination. They were not only present, but also participated in getting the document registered. Hence, the judgment rendered in Krishna Shankar Mirjankar’s case (referred supra) is not applicable to the case on hand and does not come to the aid of the appellant.
48. Under the circumstances, there is force in the contention of the learned counsel for respondent Nos.1 to 3 that the Will - Ex.D5 came into existence under suspicious circumstances and the evidence of DWs.1 to 4 does not come to the aid of the appellants to reverse the finding of the trial Court. The trial Court has taken note of the settled principles of law with regard to proving of the Will. Mere attestation under Section 63(c) of the Indian Succession Act, 1925, is not enough and the propounder of the Will has to dispel the suspicious circumstances by leading cogent evidence before the Court. Hence, I am of the opinion that the Court below has not committed any error in coming to the conclusion that the very execution of the Will has not been proved and in coming to the conclusion that the same is surrounded with suspicious circumstances. The said finding arrived at by the Court below cannot be interfered with.
49. With regard to the question as to whether all the legal heirs of Thammaiah are entitled for share in the suit schedule property, no doubt the release deeds which came into existence in the year 1979, were also produced before the Court as per Exs.D9 and D10, which have been produced by DW.4. Though the plaintiffs dispute the said documents, the fact remains that the same are registered documents. Learned counsel appearing for the respondent Nos.1 to 3 would contend that in the release deeds, schedule is not mentioned and it is not stated in respect of which properties, they were releasing their rights. It is pertinent to note that admittedly, the suit schedule property belonged to the executant which was purchased by him in the year 1962 in terms of Ex.P6. During the lifetime of the original owner of the suit property, the question of daughters of Thammaiah executing the release deed/s does not arise since the same is the self acquired property of the executant. Since daughters of Thammaiah had no right in the suit property, mere execution of release deeds by them during the life time of the owner of the suit property does not create any right in favour of releasees i.e., Thammaiah and Pillanna. Parties to the suit also did not dispute the fact that the suit property was purchased by the executant in the year 1962. When such being the case, mere execution of the release deeds also does not cease the right of the daughters of the executant. The contention of the learned counsel for appellants' that the plaintiffs are not entitled to any share in the suit schedule property cannot be accepted. It is an admitted fact that the second Will was executed on 03.03.1981 and though the attesting witnesses have not been examined before the trial Court, all the parties admit the execution of the said Will. It is necessary to take note of the rights accrued to the parties, either in terms of the Will dated 03.03.1981 or in terms of succession. Even assuming that there was no Will, the legal heirs of the executant are entitled for equal share in respect of the suit schedule property. Hence, I am of the opinion that there are no grounds to interfere with the impugned judgment of the trial Court and to reverse the same.
50. In view of the discussion made above, I pass the following:
ORDER Both the Appeals are dismissed. Parties to bear their own cost.
Sd/- JUDGE sma