Dismissed

T Udayakumari v. T Kailaskumar

Karnataka HC8 Apr 2024RFA/1357/2009

Case brief

AI extract

What is this about?

Partition appeal by a daughter challenging a decree giving her brother a 1/6th share in their mother's house. The court upheld the trial Court's finding that the father's Will was unproved due to unexplained suspicious circumstances, and held that findings on the mother's Will were void for want of pleadings and issues.

What did the court decide?

Trial Court's judgment and decree in O.S.No.7841/1998 confirming plaintiff's 1/6th share confirmed; no costs.

T Udayakumari Vs T Kailaskumar — Succession and Inheritance | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 8^TH DAY OF APRIL, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE C M JOSHI

¶7

REGULAR FIRST APPEAL NO. 1357 OF 2009 (PAR/SEP-POS)

¶8

BETWEEN:

¶9

SMT. T UDAYA KUMARI, W/O GURUSWAMY, AGED ABOUT 50 YEARS, R/AT NO.740, 58^TH CROSS, 4^TH BLOCK, RAJAJINAGAR, BANGALORE-560 010.

¶10

...APPELLANT

¶11

(BY SRI N B N SWAMY, ADVOCATE)

¶12

AND:

¶13

Digitally signed by NANDINI R Location: High Court of Karnataka

¶14

T KAILAS KUMAR, S/O LATE V. THAMMAIAH, AGED ABOUT 67 YEARS, R/O H.NO.740 (GROUND FLOOR), 58^TH CROSS, 4^TH BLOCK, RAJAJINAGAR, BANGALORE-560 010.

¶15

SUJATHA, W/O LATE T.GANESH KUMAR, AGE: MAJOR, R/O NO. 1324/4, MAHAKAVIPAMPA ROAD, S RAMESH ROAD, PRASHANTH NAGAR, T DASARAHALLI, BANGALORE - 57.

¶16

T SURENDRA KUMAR, S/O LATE V THAMMAIAH, AGED ABOUT 53 YEARS. SINCE DEAD REP. BY LRS.

¶17

2 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶18

3(a) S. PAVAN KUMAR, S/O LATE T.SURENDRA KUMAR, MAJOR BY AGE, R/AT NO. 730, 12^TH CROSS, 3^RD BLOCK, RAJAJINAGAR, BANGALORE-560 010.

¶19

T MANGALA KUMARI, W/O D RAMACHANDRA, AGED ABOUT 52 YEARS, R/O NO. 271, 11^TH B CROSS, 14^TH MAIN, II PHASE, J P NAGAR, BANGALORE.

¶20

T ANNAPURNA, W/O LATE S KUMAR, AGED ABOUT 68 YEARS. SINCE DEAD BY LR:

¶21

5(a) MR. S RAGHAVENDRA, S/O LATE S.K. KUMAR & LATE T ANNAPURNA, AGED ABOUT 37 YEARS, R/AT NO. 740 (MAIN HOUSE), 58^TH CROSS, 4^TH BLOCK, RAJAJINAGAR, BANGALORE - 560 010 AMENDED VIDE ORDER DATED 19.01.2024

¶22

…RESPONDENTS

¶23

(BY SRI M SHIVAPRAKASH, ADVOCATE FOR R1; SMT. ANJANA C H, ADVOCATE FOR R3(a); NOTICE TO R2 HELD SUFFICIENT V/O DATED 06.06.2017; NOTICE TO R4 HELD SUFFICIENT V/O DATED 06.07.2017; NOTICE TO R5(a) HELD SUFFICIENT V/O DATED 19.07.2022)

¶24

THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 8.9.2009 PASSED IN O.S.NO.7841/1998 ON THE FILE OF THE XX ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE,PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶25

¶26

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶27

THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 23.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶28

JUDGMENT

¶29

This appeal arises out of the judgment and decree passed in O.S.No.7841/1998 by the learned XX Additional City Civil and Sessions Judge, Bangalore City, dated 08-09-2009, whereby the suit filed by the plaintiff for partition came to be partly decreed. The present appeal is filed by defendant No.5 in the said suit.

¶30

The parties would be referred to as per their ranks before the trial Court for the sake of convenience.

¶31

The factual matrix of the case that is necessary for the purpose of this appeal are as below:

¶32

a) Plaintiff happens to be the son of defendant No.1 and the brother of defendant No. 3 to 6. The husband of defendant No.2 was another brother of the plaintiff.

¶33

b) The plaintiff contend that the suit schedule property which is bearing No.740, situated at 58^th Cross,

¶34

4 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶35

4^th Block, Rajajinagar, Bangalore, consisting of building measuring 40 feet East-West and 60 feet North-South, was allotted to the father of the plaintiff-V.Thammaiah and a registered sale -cum- lease agreement was executed on 05-04-1956 by CITB, Bangalore. The father of the plaintiff-V. Thammaiah has mortgaged the property in favour of Mysore Housing Board, by a registered document

¶36

in the year 1958 by taking the advance of Rs.8,000/towards the cost of the site and a house was also built on the suit schedule property and the loan came to be discharged by V.Thammaiah on 09-05-1971 and therefore, the mortgage was redeemed. The father of the plaintiffV.Thammaiah died on 25-05-1976.

¶37

c) Thereafter, the sale deed was executed by Deputy Secretary BDA in favour of defendant No.1, who is wife of V.Thammaiah. Accordingly, the name of defendant No.1 was entered in Property Tax Assessment Register of the City Corporation. Defendant No.1 was not having any independent income, but she was maintaining herself by

¶38

5 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶39

rents received from the suit schedule property and was also maintained by her children.

¶40

d) It is the contention of the plaintiff that he married on 24-6-1977 in Bangalore and was residing with defendant No.1 for some time and due to the differences among the women folk, he had to reside in a rented house separately. Thereafter, his sisters i.e., defendant Nos. 3 to 6 got married and the plaintiff attended all the marriages. Plaintiff was working in PWD and subsequently transferred to Shimoga and again came to Bangalore in the year 1995.

¶41

e) It is contended that the plaintiff and defendants living jointly, and subsequently, defendant Nos. 1 to 6 separated plaintiff. It is contended that the plaintiff and defendants have divided suit schedule property into four portions as shown in the hand sketch. The First Floor of the property was leased to defendant No.7 for a sum of Rs.5,00,000/- and the money was collected by defendant No.3. It is stated that a portion in the ground floor shown

¶42

¶43

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶44

by hand sketch map was let out to one Boralingaiah on rent. It is contended that defendant No.6 married to one

¶45

S. Kumar, who died in the year 1994 and there was a loan liability of Rs.75,000/created in the form of memorandum of deposit of title deeds on 30-06-1998 and it was executed by defendant Nos. 1 and 3 to 6. Later loan was cleared and the encumbrance was released.

¶46

f) In the meantime, the brother of the plaintiff i.e. Ganesh Kumar, who was the husband of defendant No.2 died leaving behind defendant No.2 and two minor children, who are living separately. It is contended that defendant No.6 was a quarrelsome lady and due to non co-operation, the brothers and sisters fed up. Due to such behavior of defendant Nos. 5 and 6, the plaintiff even had to go to the police by filing FIR No.259/1998 on 19-071998. It is contended that though the plaintiff and defendant No. 1 to 4 were there, defendant Nos. 5 and 6 are dominating and occupying the entire building and as such, the plaintiff was constrained to demand a partition in

¶47

7 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶48

the suit schedule property. It is contended that despite several panchayats held among the parties they failed, therefore plaintiff constrained to file a suit claiming partition of 1/4^th or appropriate share. It is the case of the plaintiff that the suit schedule property is the joint family property of plaintiff and defendant Nos. 1 to 3 and therefore, he is entitled for share.

¶49

On issuance of summons, the defendants appeared before the trial Court through their counsel. Defendant No.1 in her written statement admitted the relationship. She contended that the property in question was absolutely belonging to her by virtue of the Will executed by her husband-V.Thammaiah. It is contended that the property was the absolute property of V. Thammaih and in fact, he was working at VISL Bhadravati and out of his own earnings, he had purchased the suit schedule property.

¶50

It is contended that after the retirement, V. Thammaiah had shifted to Bangalore and has applied to

¶51

¶52

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶53

CITB for a site, which came to be allotted in his favour. It is contended that V. Thammaiah died on 24-5-1976, but he had executed a Will earlier to his death and as per the said Will, the suit schedule property has come to defendant No.1 Thereafter, the BDA has executed an absolute sale deed in favour of defendant No.1 and therefore, it is her exclusive and absolute property. It is contended that the question of dividing the suit schedule property arises only after the demise of defendant No.1 if the property remains intact even after the demise.

¶54

Defendant No.2, who happens to be the wife of another son of defendant No.1, contended that, she is having 1/6^th share in the suit schedule property which is entitled by her husband Ganesh Kumar. She has supported the other contentions of the plaintiff in her written statement.

¶55

Defendant Nos. 2 to 6 filed common written statement which was also signed by defendant No.1. They admitted that the suit schedule property was allotted to

¶56

¶57

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶58

V.Thammaiah and after his death, BDA has executed a registered Sale Deed in favour of defendant No.1. They denied that defendant No.1 was not having any independent income and that she was maintaining the family out of the rent received from the suit schedule property. They contended that the plaintiff had never joined the family and participated in the day today affairs since from the date of his marriage. Prior to the institution of the suit, the plaintiff had forcibly entered into the suit schedule property and he is in occupation of a portion of the property. They also denied that a portion of the property was let out to one Boralingaiah and the first floor was leased to defendant No.7.

¶59

They contended that the suit schedule property

¶60

is the self acquired property of defendant No.1 after having purchased the same from BDA under a registered sale deed, the plaintiff being the eldest member of the family was bound to maintain the family, but after demise of V.Thammaiah on 24-5-1976 he has failed in his duty

¶61

10 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶62

and therefore, defendant No.1 was forced to maintain family through Chit fund business. The plaintiff was married on 24-6-1977 to a gainfully employed lady and they are reluctant to pay single rupee for maintenance of the joint family.

¶63

They further contended that in the year 1978, the plaintiff has been ousted from the joint family and therefore, he is not entitled for any reliefs. In the alternative, defendant Nos. 3 to 6 contended that if at all the property was originally belonging to father of the plaintiff and defendant Nos. 3 to 6, it has to be construed as self acquired property and the same is the subject matter of Will dated 25-4-1976 executed by V.Thammaiah in favour of defendant No.1. Hence, they sought for dismissal of the suit.

¶64

On the basis of the above pleadings, the trial Court framed the following issues:

¶65

1. Whether the plaintiff proves that he is entitled for 1/4^th share in the suit schedule

¶66

11 -

¶67

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶68

property and separate possession of the same by metes and bounds?

¶69

2. Whether the defendants prove that the plaintiff was ousted from the joint family from 1978?

¶70

3. Whether the defendants prove that the suit schedule property is self acquired property of the first defendant and also the subject matter of the Will dated 25.4.1976 executed in favour of him?

¶71

4. To what reliefs are the parties entitled?

¶72

5. What order or decree?

¶73

The plaintiff was examined as PW1 and

¶74

Exhibits P1 to P12 were marked and Exs.P13 to 17 were

¶75

marked in the cross examination of PW1. Defendant No.4

¶76

was examined as DW1 and Exhibits D1 to D5 were marked in evidence. Defendant No.5 was examined as DW2. The attesting witnesses to the Will dated 25-4-1976

¶77

was examined as DW3 and another witness was examined as DW4.

¶78

12 -

¶79

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶80

During the pendency of the suit, defendant No.1 died on 28-5-2006. After hearing the arguments,

¶81

the trial Court answered issue No.1 partly in the affirmative, issue Nos. 2 and 3 in the negative and proceeded to hold that the plaintiff is entitled for 1/6^th share in the suit schedule property and partly decreed the suit.

¶82

Being aggrieved by the said judgment, defendant No.5 is before this Court in appeal.

¶83

The appellant contend that the impugned

¶84

judgment is against the law, facts and merits of the case. It is contended that the learned trial Judge has failed to note that the Will of V.Thammaiah dated 25-4-1976 was

¶85

admitted by trial Court, but failed to appreciate that the Will of said V.Thammaiah 25-4-1976 was admitted by all the parties to the suit who are the wife and children of V.Thammaiah, except the daughter-in-law i.e., defendant No.2. It is contended that the trial Judge has grossly erred

¶86

in not appreciating that the plaintiff has not at all

¶87

13 -

¶88

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶89

challenged the Will and the signature of the testator or the signature of the witnesses of the Will dated 25-4-1976, produced at Ex.D3. It is contended that the admissions of PW1 in respect of Ex.D3 were not properly considered by the trial Court. Further, it is contended that the learned trial Judge has grossly erred in not relying on the evidence of DW3 to prove the Will dated 25-4-1976 when the signature of the testator was not disputed, but relied heavily on the affidavit and the indemnity bond produced at Exs.P16 and P17. It is further stated in the appeal memo that the Will executed by defendant No.1 Girijamma, was never pleaded by either of the parties and therefore, the trial Court dealing with the said Will and terming the same to be the doubtful was not called for. It is contended that the observations with regard to the Will of defendant No.1 dated 10-02-1998 deserves to be expunged, since it is bereft of any claims. Therefore, the appellant has sought for allowing the appeal and setting aside the judgment and decree passed by the trial Court and to dismiss the suit.

¶90

14 -

¶91

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶92

On issuance of notice, the plaintiff and the other

¶93

respondents have appeared through their counsel before this Court.

¶94

After admitting the appeal, the trial Court

¶95

records has been secured. The arguments by the learned counsel appearing for the appellant and the learned counsel for respondent No.1/plaintiff were heard.

¶96

The learned counsel appearing for the

¶97

appellant/ defendant No.5 contended that :

¶98

a) The plaintiff admits in his cross-examination that

¶99

there was a Will executed by his father V.Thammaiah and therefore, there was no necessity for the trial Court to go into the question of the proof of the Will. He further contended that the Will, which is at Ex.D3 shows that the entire property was bequeathed to defendant No.1. The attesting witness to the said Will was none else than DW3. It is submitted that DW3 is renowned Criminal Lawyer of

¶100

Bangalore and he has in categorical terms stated that he had drafted the said Will at the instance of deceased

¶101

15 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶102

V.Thammaiah, since he knew Thammaiah very well. It is contended that the evidence of DW3 clearly establish that the Will was executed by the father of the plaintiff V.Thammaiah in the presence of two witnesses and one among them was a Medical Practitioner.

¶103

b) It is submitted that there is nothing in the evidence of DW3 which would show that there are suspicious circumstances surrounding Ex.D3 Will. Therefore, there was no reason for the trial Court to go into the validity of the Will when PW1 has admitted the same and that there was sufficient evidence in the form of DW3-C.H.Hanumantharaya. He further submitted that the suit property was allotted by BDA on a 20 years lease and when V.Thammaiah died, said 20 years had lapsed and thereafter, the sale deed was executed in favour of defendant No.1. The defendants undertook before BDA that there is no Will and it was only in continuation of format which was issued by BDA. Therefore, Exs.P16 and

¶104

16 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶105

P17 cannot be the documents which would render the Will at Ex.D3 to be a suspicious one.

¶106

c) He contends that except Exs.P16 and P17, there is no other suspicious circumstances that could surface from the evidence on record. The plaintiff had not averred about the Will in his pleadings despite he knew about the said Will. Therefore, there is suppression of fact by the plaintiff and the plaintiff had not sought for any relief in respect of the said Will. It is contended that V.Thammaiah died on 25-05-1976 and the Will was executed on 25-04-1976 as per Ex.D3. Hence, there is no material to show that V.Thammaiah was not capable of making a testamentary disposition of the property.

¶107

d) It is stated that defendant No.1-Girijamma, died on 28-05-2006 during the pendency of the suit and she had executed a Will on 10-02-1998. It is stated that the suit was filed on 09-10-1998 and the defendants have put forth the contention that the Will executed by Girijamma would enure to their benefit and the suit property would

¶108

17 -

¶109

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶110

devolve upon defendant Nos. 4 and 5. Hence, the learned counsel appearing for the appellant has contended that the impugned judgment passed by the trial Court is not sustainable in law and its finding on Ex.D3 is erroneous.

¶111

18. Per contra, the learned counsel appearing for respondent No.1/plaintiff would submit that V.Thammaiah died on 25-05-1976 and Will was executed 30 days prior to the date of his death. The suit was filed on 09-10-1998. It is contended that from the year 1976 to 1998 the Will had not seen the light of the day. He points out that the Ex.D3 Will is surrounded with suspicious circumstances. He points out the lacunae in the testimony of DW3. It is pointed out that DW3 was also the advocate and he had identified the plaintiff and defendants in Ex.P15 and P16 which were filed before the BDA. The plaintiff and defendants had consented for the sale deed to be executed in favour of defendant No.1 by way of filing a joint affidavit as well as indemnity bond. In both the documents, there was a declaration that V.Thammaiah

¶112

18 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶113

had not left behind any Will. Therefore, when in the affidavit as well as indemnity bond in the form of Exs.P16 and P17 it was stated that V. Thammaiah had not left any Will, which were signed by none else than DW3, it cannot be in the mouth of DW3 that, there was a Will executed by V.Thammaiah. Therefore, he contends that the evidence of DW3 is not sustainable in law. DW3 is not a layman, but he was a renowned Criminal Lawyer and therefore, at the time of signing Exs.P16 and P17, he should have disclosed about the Will at Ex.D3. Since Ex.D3 was not in existence

¶114

on the date when Exs.P16 and P17 were submitted to BDA, it would point out that Ex.D3 is concocted and created subsequent to the date of Ex.P16 and Ex.P17. He further argued that the trial Court discusses issue No.3 in detail and it has considered the evidence on record and has rightly come to the conclusion that there are suspicious circumstances.

¶115

Regarding the second Will, i.e. the Will of Girijamma, he submits that there is no pleading on behalf

¶116

19 -

¶117

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶118

defendants in respect of the Will executed by defendant No.1. After the death of defendant No.1- Girijamma, defendant Nos. 4 and 5 who were the beneficiaries under the Will at Ex.D2, should have put forth their pleadings and sought for an appropriate relief. Therefore, letting in of the evidence in the form of Ex.D2 is not proper and correct. However, the trial Court goes on to decide the Ex.D2 and points out that it is also doubtful. It is also pointed out by the learned counsel for respondent No.1 that DW4, who is claiming to be the scribe and therefore,

¶119

he cannot be an attesting witness. It is pointed out that the husband of defendant No.5 was an attesting witness to the said document and therefore, he had taken prominent role in the creation of the Will as per Ex.D2 and as such, the correctness of Ex.D2 cannot be believed. Further, defendant No.1, testatrix was a party to the present suit and in her written statement, she has not disclosed about

¶120

the said Will and also that in clear terms she had stated that the question of dividing property arises only after the demise of defendant No.1, if it is in tact even after her

¶121

20 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶122

demise. This averment in the written statement points out to the fact that, there was no such Will as on the date of defendant No.1 filing the written statement. Therefore, he contends that the judgment of the trial Court is proper and correct and there is no need for interfering with the findings of the trial Court.

¶123

In support of his contentions, he relied on the decision in the case of The Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma,¹ He also relied on the decision in the case of Girija Datt Singh Vs.

¶124

Gangotri Datt Singh² which are concerning about the manner in which the Will has to be proved. He also relied on the decision in the case of M.L. Abdul Jabbar Sahib

¶125

Vs. H. Venkata Sastri and sons and others etc.,³ concerning the meaning of the attestation. He also relied on the judgment in the case of Beni Chand (Since dead)

¶126

Now by LRs Vs. Smt. Kamla Kunwar and others⁴ . He

¶127

also relied on judgment in the case of J.T.Surappa and

¶128

1 1958 SCC OnLine SC 31: AIR 1959 SC 443

¶129

2 AIR 1955 SC 346

¶130

3 AIR 1959 SC 1147

¶131

4 AIR 1977 SC 63

¶132

21 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶133

another Vs. Sri Satchidhanandendra Saraswathi

¶134

Swamiji Public Charitable Trust and others⁵ . He also

¶135

relied on the judgment in the case of Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee since deceased and after his legal representatives

¶136

and others⁶ . He also relied on the judgment in the case

¶137

of N. Kamalam (dead) and another Vs. Ayyasamy

¶138

and another⁷ which are concerning the proof of a Will.

¶139

After hearing the arguments by learned counsel for the appellant and respondent No.1, the points that arise for consideration are:

¶140

Whether defendants No.1, 3 to 6 have proved that Thammaiah had executed the Will bequeathing the suit schedule property to defendant No.1 as per Ex.D3?

¶141

Whether the trial Court could have decided on the Will executed by defendant No.1 without any pleadings? If so, whether defendant Nos. 4 and 5 have proved that defendant No.1 had executed the Will as per Ex.D2?

¶142

Whether the impugned judgment of the trial Court needs to be interfered with?

¶143

5 ILR 2008 Karnataka 2115

¶144

6 AIR 1964 SC 529

¶145

7 AIR 2001 SC 2802

¶146

22 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶147

Re.Point No.1:

¶148

The main contention of the learned counsel for the appellant is that the plaintiff has not disputed, and admitted, the Will at Ex D3 executed by V. Thammaiah and therefore, the trial Court need not have ventured into the question of proof of the Will. He submits that the plaint do not raise any dispute about the Will of V. Thammaiah and the PW1 in his cross- examination admits the Will. Therefore, there was no reason for the trial Court to consider the veracity of the Will at Ex. D3.

¶149

Though it appears that the proof of the Will was not in dispute, it must be noted that the plaintiff, in his pleadings is silent on the Will. He do not deny the Will nor admit the Will. Therefore, the alleged admission of the Will by the plaintiff is only in the form of the oral admission in cross- examination.

¶150

In the case on hand, the beneficiary of the Will was none other than the wife of the testator Girijamma, who is the defendant No. 1. Though she contended about

¶151

23 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶152

the Will in her pleadings, she could not survive to be a propounder of the Will and lead evidence in that regard. Therefore, the beneficiary under the Will was no more when the evidence was led.

¶153

Thus the question is, whether the Court has to get satisfied itself about the Will or has to rely on the evidence of the parties, who have led the evidence in support of the Will and the other lends a half hearted admission in the cross examination?

¶154

The Apex Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma ,⁸ has held as below.

¶155

“18. ………. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document

¶156

8 1958 SCC OnLine SC 31: AIR 1959 SC 443

¶157

24 -

¶158

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶159

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 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. …………. 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.

¶160

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of

¶161

25 -

¶162

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶163

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. ……………. 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.

¶164

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may 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

¶165

26 -

¶166

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶167

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. …………

¶168

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.

¶169

21. ……….. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced

¶170

27 -

¶171

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶172

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.

¶173

22. …………… 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 quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.”

¶174

(underlining by me)

¶175

The above case is relied, referred and followed

¶176

in more than 150 judgments across the country by the Apex Court and various High Courts.

¶177

28 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶178

This view was reiterated by this Court in the

¶179

case of J.T. Surappa v. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust,⁹ where after referring to Thimmajamma’s case, the Court laid down the five steps to be followed by the Courts. Obviously, it was a case where Probate was sought.

¶180

“24. Therefore, the court has to tread a careful path in the enquiry to be conducted with regard to Will. The said path consists of five steps “PANCHAPADI”. The path of enquiry and steps to be traversed are as under:—

¶181

(1) Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?

¶182

(2) Whether the natural heirs have been disinherited? If so, what is the reason?

¶183

(3) Whether the testator was in a sound state of mind at the time of executing the Will?

¶184

(4) Whether any suspicious circumstances exist surrounding the execution of the Will?

¶185

(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?”

¶186

9 2008 SCC OnLine Kar 188 : ILR 2008 Kar 2115

¶187

29 -

¶188

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶189

The Apex Court by relying on the judgment of Thimmajamma’s case, in a recent judgment in Shivakumar v. Sharanabasappa¹⁰ (supra) , has held as below.

¶190

“12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a will could be broadly summarised as follows:

¶191

12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.

¶192

12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

¶193

12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed.

¶194

10 (2021) 11 SCC 277

¶195

30 -

¶196

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶197

This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

¶198

12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

¶199

12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

¶200

31 -

¶201

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶202

12.6. A circumstance is “suspicious” when it is not normal or is “not normally expected in a normal situation or is not expected of a normal person”. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.

¶203

12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

¶204

12.8. The test of satisfaction of the judicial conscience comes into operation when a document

¶205

32 -

¶206

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶207

propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

¶208

12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.”

¶209

(Underlining by me)

¶210

It is relevant to note that the Apex Court and this Court were conscious of the fact that even if there is

¶211

no contest to the Will, as in the case of Probate proceedings, the conscience of the Court must be satisfied before upholding the Will brought before the Court. It is in this background that the evidence on record needs to be appreciated by this Court.

¶212

DW1 in her affidavit states that her father had executed the Will as per Ex D3. She do not explain how

¶213

33 -

¶214

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶215

the she came to know about the Will. Even the Written Statement of defendant No.1 does not mention how and when she came in custody of the Will. In the crossexamination of DW1, it is elicited that she do not know anything about the affidavit and the indemnity bond which are at Exs.P16 and P17. She denies any such documents signed by her. She denies the suggestion that Ex.D3 Will was created subsequent to the absolute Sale Deed executed by BDA as per Ex.D1. However, she admits her signature on Exs.P16 and P17.

¶216

The testimony of DW2 also shows that she admits her signature on Exs.P16 and P17 and she denies that Ex.D3 is created subsequent to Ex.D1 -sale deed, to grab the property. Much of the cross-examination is in respect of the Ex.D2.

¶217

The DW3 –C. H. Hanumatharaya, states that he prepared the Will as per Ex.D3 and got it typed from Ramanuja. Curiously, he categorically states that he had gone through the contents of Exs. P16 and P17 before he

¶218

34 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶219

had signed on them, but denies that they are contrary to Ex. D3 Will. Further, he denies that Ex D3. is brought into existence after Exs.P16 and P17 were submitted to BDA. Evidently, the testimony of DW.3 do not explain this circumstance. He was not a layman. Therefore, the conclusion of the trial Court that the evidence of DW3 suffer from credibility cannot be found fault with.

¶220

It is settled principles of law that the Appellate Court cannot replace the view taken by the trial Court simply because another view is possible. The trial Court had the advantage of seeing the demeanour of the witnesses.

¶221

The above view of this Court is fortified by the recent judgment of the Apex Court in the case of V. Prabhakara v. Basavaraj K.¹¹ , where in it is noted as below:

¶222

“22. The first appellate court while exercising power under Section 96 can re-do

¶223

11 (2022) 1 SCC 115

¶224

35 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶225

the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.

¶226

23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in Jagdish Singh v. Madhuri Devi [(2008) 10 SCC 497]”

¶227

36. The trial Court held that, the Will at Ex.D3

¶228

executed by V.Thammaiah, is not proved as the suspicious

¶229

36 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶230

circumstances under which it surfaced, particularly, after Exs.P16 and P17 were furnished to BDA in the year 1998, are not explained by the defendants. It has disbelieved the evidence of DW3 C.H.Hanumantharaya, since he does not explain Exs.P16 and P.17. It also came to the conclusion that the suit schedule property was the self acquired property of V.Thammaiah, and there was no dispute between the parties about the nature of the property. Thus, it held that plaintiff is entitled for 1/6^th share in the suit schedule property. No fault can be found in respect of

¶231

the conclusions in granting equal share to the plaintiff. Hence, there is no need to interfere with the decree passed by the trial Court. In the result, this court also comes to the conclusion that the defendants have failed to prove Ex. D3, the Will executed by Thammaiah. Hence the Point No. 1 is answered in the negative.

¶232

Re.Point Nos.2 and 3

¶233

The learned counsel appearing for the plaintiff has contended that there is no pleading in respect of the

¶234

37 -

¶235

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶236

Will executed by defendant No.1 Girijamma either in the written statement of defendants No.3 to 6 or in the plaint. No issues were framed in respect of the aid Will of defendant No.1, marked at Ex.D2. Even then the evidence in respect of the Will Ex.D2 was let in by the defendants No. 3 to 6 by examining the scribe as DW4. He contends that the trial Court could not have dealt with the Ex.D2 as it was bereft of any pleadings. Even if the evidence of DW4 is considered, he is only a scribe, but not the attesting witness of Ex.D2 and therefore, there was no need for considering the Ex.D2.

¶237

38. Per contra , learned counsel appearing for the appellant contend that Ex.D2 being a document executed by defendant No.1, could have been considered by the trial Court and the finding of the trial Court regarding Ex.D2 is not proper and correct.

¶238

It is settled principle of law that evidence has to be led on the basis of the pleadings. Any evidence without pleadings and issues, is not permissible. The basic

¶239

38 - NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶240

principle of a civil trial is that a fact must be pleaded and evidence to be adduced to prove such facts. There are umpteen number of precedents in this regard. A latest decision of the Apex Court in the case of Srinivas Raghavendrarao Desai Vs. V. Kumar Vamanrao @ Alok¹² relies upon the judgment of the Apex Court in the case of Bhagwati Prasad v. Chandramaul¹³ to reiterate that evidence has to be led on the pleadings. A fact which is not pleaded cannot be considered even though there is evidence. In Bhagwati Prasad’s case referred supra, it was held as below:

¶241

“10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party

¶242

12 (2024) 3 SCR 46; 2024 INSC 165 dated 4-3-2024 13 AIR 1966 SC 735

¶243

39 -

¶244

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶245

from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”

¶246

It is pertinent to note that in the case on hand, defendant No.1 died during the pendency of the suit. In her written statement, there was no such disclosure of the Will executed by her in the year 1988. Defendants No. 4

¶247

40 -

¶248

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶249

and 5 who are the beneficiaries under the said Will of defendant No.1 did not amend their written statement to incorporate their claim under the Will of defendant No.1. Therefore, the plaintiff had no occasion to contradict the said Will by way of his pleadings. Further, there were no issues concerning the Will of defendant No.1. Plaintiff could not put forth his contention in respect of the Will of defendant No.1 which is at Ex.D2. Thus, it is evident that the defendants have led evidence without there being pleadings on their behalf, an opportunity being given to plaintiff to make his pleadings and also without there being any issue in that regard. Therefore, the evidence concerning the Will of defendant No.1 at Ex.D2 was not in issue for determination before the trial Court.

¶250

The trial Court while considering issue No.1 concerning the share of the plaintiff, deals with the Will of defendant No.1 and the evidence let in by the defendants. It comes to the conclusion that DW4 is a scribe of the Will at Ex.D2, but he is not a attesting witness. Therefore, it

¶251

41 -

¶252

NC: 2024:KHC:14442 RFA No. 1357 of 2009

¶253

discards his evidence and holds that the defendants have not proved the said Will. Such a finding was unnecessary in view of absence of any pleadings or issues in that regard. At the most, such a finding of the trial Court can only be construed that it was for the purpose of determining the share of the parties. Hence, the finding of the trial Court in respect of Ex.D2 and regarding its proof cannot be considered at all.

¶254

In that view of the matter, the point No.2 raised by this Court has to be answered in the negative. As a consequence, there is no need to consider point No.3 also. The conclusions of the trial Court so far as the finding on the Will executed by defendant No.1 cannot be of any relevance, since there was no pleading or the issue in that regard. Hence, this Court has to brush aside the findings of the trial Court in respect of Ex.D2 while maintaining the decree passed by the trial Court. The suit schedule property devolves upon the plaintiff and all the children of V.Thammaiah by virtue of intestate succession. Therefore,

¶255