Dismissed¶165

Smt. Padmavati W/O Mallappa Lankeppanavar v. Master Rangappa S/O Ravindra Mantannavar

Karnataka HC1 Feb 2025RFA/100315/2017

Case brief

AI extract

What is this about?

Proof of will; attesting witnesses; suspicious circumstances; Section 63 Indian Succession Act 1925; Section 68 and Section 69 Indian Evidence Act 1872; cancellation of earlier will with reasons recorded; optional registration of will; registration at Ramdurg not suspicious; propounder-nephew; declaration and possession suit; partition decree O.S.No.67/1993; Mudalagi, Gokak, Belagavi; II Additional Senior Civil Judge Gokak; regular first appeal dismissed; decree confirmed; minors and next friend; Karnataka High Court Dharwad.

What did the court decide?

Appeal dismissed; the judgment and decree dated 28.07.2017 passed in O.S.No.102/2009 by the II Addl. Senior Civil Judge, Gokak confirmed; no order as to costs. ¶165

Smt. Padmavati W/O Mallappa Lankeppanavar Vs… — Succession and Inheritance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Appeal dismissed; the judgment and decree dated 28.07.2017 passed in O.S.No.102/2009 by the II Addl. Senior Civil Judge, Gokak confirmed; no order as to costs.

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Issue for consideration

Whether, under the facts and circumstances of the case, the plaintiff proves compliance with the legal requirements for proving the Will under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. +1 more

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Court's answer

From the cumulative evidence it is proved that Tippawwa was present in the Sub-Registrar's office and had got the Will registered, having earlier given instructions through PW.2 (who gave dictation and attested) for its preparation.

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Ratio / Principle

PW.5, son of the deceased scribe Krishnaji Phadnis, identified his father's handwriting and signature on Ex.P.12; such evidence is relevant under Section 69 of the Indian Evidence Act.

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Key takeaways

The subsequent Will (Ex.P.12) records the cancellation of the first Will dated 23.08.2002 and the reason therefor — its beneficiary failed to look after Tippawwa — whereupon she changed her mind and executed the second Will; this proves the testatrix's intention.ratio¶145
Since Tippawwa and Hanamanthappa had no issues and she was in the care and custody of the plaintiff after becoming a widow, her intention to bequeath the property to the plaintiff is proved and the defendants' deviation (disinheritance) is explained; no unnatural circumstances attend execution and the Will is validly executed and truthful.ratio¶158

Detailed headnote1 paragraphs

High Court of Karnataka, Dharwad Bench (Hanchate Sanjeevkumar J., 01.02.2025) dismissed RFA No.100315/2017 and confirmed the judgment and decree dated 28.07.2017 of the II Additional Senior Civil Judge, Gokak in O.S.No.102/2009, whereby the minor plaintiff (represented by his mother) was declared absolute owner of the properties bequeathed to him by Tippawwa under registered Will dated 04.03.2006 (Ex.P.12), with possession and change of revenue records. Execution was proved through attesting witnesses PW.2 to PW.5 in compliance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, and the deceased scribe's son identified the handwriting under Section 69 of the Evidence Act. The later Will recorded cancellation of the earlier Will dated 23.08.2002 (Ex.D.1) in favour of defendant No.7 because its beneficiary failed to look after the testatrix. Registration at Ramdurg, though the land lay in Gokak taluk, raised no suspicion as registration of a Will is optional, and the propounder being the testatrix's nephew was natural. Appeal by defendants No.1 to 6 dismissed; no costs.

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NC: 2025:KHC-D:2049 RFA No. 100315 of 2017

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 01^ST DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100315 OF 2017 (DEC/POS)

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BETWEEN:

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SMT. PADMAVATI W/O. MALLAPPA LANKEPPANAVAR, AGED ABOUT 73 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SHRI. SATTEPPA

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S/O. MALLAPPA LANKEPPANAVAR, AGED ABOUT 38 YEARS, OCC: AGRICULTURE, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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SMT. SHIVALEELA W/O. LAXMAN MALALI, AGED ABOUT 30 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SHRI. SRINIVASA S/O. MALLAPPA LANKEPPANAVAR, AGED ABOUT 28 YEARS, OCC: AGRICULTURE, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SMT. KASTURI W/O. ISHWAR LANKEPPANAVAR, AGED ABOUT 48 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SHRI. GOPAL S/O. ISHWAR LANKEPPANAVAR, AGED ABOUT 34 YEARS, OCC: AGRICULTURE, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SMT. VIDYA W/O. PRAKASH MALALI, AGED ABOUT 32 YEARS, OCC: HOUSEHOLD WORK, R/O: MASAGUPPI VILLAGE, NOW R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SMT. HEMA D/O. ISHWAR LANKEPPANAVAR, AGED ABOUT 29 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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KUM. SHILPA D/O. ISHWAR LANKEPPANAVAR, AGED ABOUT 18 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SMT. SHANTAVVA W/O. BABU MALALI, AGD ABOUT 73 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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…APPELLANTS

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(BY SRI SHIVARAJ S.BALLOLI, ADVOCATE)

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AND:

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MASTER RANGAPPA S/O. RAVINDRA MANTANNAVAR AGED ABOUT 17 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY HIS NEXT FRIEND MOTHER-

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SMT. DRAXAYANI, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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SHRI. JAGADISH S/O. RANGAPPA LANKEPPANAVAR, AGD ABOUT 48 YEARS, OCC: AGRICULTURE, R/O: MUDALGI VILLAGE, TAL: GOKAK, DIST: BELAGAVI-591307.

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…RESPONDENTS

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(BY SRI CHETAN MUNNOLI, ADVOCATE C/R1; NOTICE TO R2 IS SERVED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 R(1) READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.07.2017 PASSED IN O.S.NO.102/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, GOKAK TO MEET THE INTEREST OF JUSTICE AND EQUITY.

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THIS REGULAR FIRST APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by defendants No.1 to 6,

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challenging the judgment and decree dated 28.07.2017, passed in O.S.No.102/2009, by the Court of the II Additional Senior Civil Judge, Gokak (hereinafter referred to as the ‘trial Court’), thereby, the suit filed for declaration and possession is decreed by declaring that the plaintiff is absolute owner of the suit properties mentioned in the Will dated 04.03.2006.

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For the purpose of convenience and easy

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reference, ranking of the parties is referred to as per their status before the trial Court.

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It is the case of the plaintiff that one

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Lankeppanavar is the original propositus who had two sons namely, Satteppa and Hanamanthappa. Defendants are representing branch of Satteppa. One Tippawwa is wife of Hanamanthappa. Hanamanthappa and Tippawwa had no issues. After death of Lankeppanavar, Satteppa and Hanamanthappa have got divided the suit properties, half share each. After death of Hanamanthappa, the relationship of Tippawwa and Satteppa’s children got strained. Therefore, Tippawwa filed a suit in O.S.No.67/1993 seeking partition to the extent of her half share. The said suit came to be decreed on 30.11.1996. Thus, Tippawwa has become owner

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of half share as she was inherited from her husbandHanamanthappa. Since, Hanamanthappa and Tippawwa had no issues, Tippawwa after death of her husband Hanamanthappa was under care and protection of her elder brother in Mudalagi. Therefore, the said Tippawwa during her

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lifetime had bequeathed the properties which are fallen to her share, to the plaintiff who is her nephew by way of registered Will. Therefore, the plaintiff has filed a suit for declaration that the plaintiff has become owner of suit properties by virtue of Will dated 04.03.2006.

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The defendants have filed written statement and denied all the averments in the plaint. The defendants No.1 to 6 have taken pleadings in the written statement that Tippawwa was residing in Mudalagi village and there is no occasion for her to go to Ramdurga and execute Will and got registered at Ramdurga Sub-Registrar office. It is pleadings of defendants No.1 to 6 that Tippawwa had executed a Will on 23.08.2003 which is prior to the alleged Will dated 04.03.2006 and bequeathed the property in favour of defendant No.7. Therefore, pleaded that the alleged Will dated 04.03.2006 is created and concocted one. Therefore, suspected execution of the Will by Tippawwa in favour of the plaintiff. Therefore, prays to dismiss the suit and also taken pleadings that if Will is not proved, then, according to law of

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succession, defendants are entitled to properties held by Tippawwa. On all these pleadings, prays to dismiss the suit.

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Defendant No.7 filed the written statement and

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admitted relationship stated by the plaintiff in the plaint. Defendant No.7 admitted that Tippawwa executed Will in favour of plaintiff. The other averments are denied by defendant No.7.

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On the above pleadings, the trial Court framed the following:

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ISSUES

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i) Whether the plaintiff proves that Smt.Tippawwa had executed a registered will dated 04.03.2006 in respect of suit properties in favour of the plaintiff, while Smt.Tippawwa was in sound disposing state of mind?

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ii) Whether the plaintiff proves that Smt.Tippawwa cancelled an earlier Will dated 23.08.2003 executed by her in favour of defendant No.7?

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iii) Whether the defendant No.7 proves that the Will dated 23.08.2003 executed by Smt.Tippawwa in respect of the suit properties in favour of the defendant No.7 is the last Will?

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iv) Whether the defendant No.7 proves that the Will dated 04.03.2006 propounded by the plaintiff is fabricated and concocted document?

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v) Whether the plaintiff is entitled for the relief claimed?

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vi) What decree/order?

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ADDITIONAL ISSUES

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i) Whether the defendant No.2 proves that the plaintiff has not valued the subject matter of the suit property?

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ii) Whether the defendant No.2 proves that the Court Fee paid by the plaintiff is not sufficient?

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iii) Whether the suit of the plaintiff on basis of unprobated Will is maintainable?

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iv) Whether the suit is bad for mis-joinder of causes of action?

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On behalf of plaintiff, her mother is examined as

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PW.1 as the plaintiff is a minor and examined four witnesses

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as PW.2 to PW.5 and got marked the documents at Ex.P.1 to

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P.30. On behalf of defendants, defendant No.2 is examined as DW.1 and four witnesses were examined as DW.2 to DW.5 and got marked a document at Ex.D.1.

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The trial Court decreed the suit declaring that the plaintiff is the owner of the properties mentioned in the Will dated 04.03.2006 and also decreed that the plaintiff is entitled for possession of the same and also ordered for carryout out change of name of plaintiff as per Karnataka Land Revenue Act. The trial Court assigned reason that the plaintiff has examined attesting witnesses PW.2 to PW.5. From this evidence execution of Will dated 04.03.2006 is proved. Therefore, the trial Court by forming opinion that the plaintiff has proved Will as having been complied with as per section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act and also the testator was in sound state of both physical and mental health. Therefore, the trial Court has held that the Will Ex.P.12 is proved. Hence, decreed the suit in favour of the plaintiff.

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Being aggrieved by it, defendants No.1 to 6 have preferred appeal and raised various grounds and the learned counsel for appellants/defendants No.1 to 6 in support of grounds raised has submitted that execution of Will is under suspicious circumstances. The property was situated in

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Mudalagi village and Tippawwa was residing in Mudalagi village and there is no occasion for her to go to Ramadurg for getting registration of Will at Ramadurg Sub-Registrar Offfice. Tippawwa could have registered the Will at Gokak taluk itself where Mudalagi comes within the jurisdiction of Gokak taluk. Further, attesting witnesses are relatives of plaintiff and the said Tippawwa was influenced and put coercion and by taking such coercive action, got fraudulently registered the Will in the Sub-Registrar Office at Ramadurg. Therefore, there are various circumstances revealed, that is not appreciated by the trial Court correctly. Further submitted that Tippawwa had executed a Will on 23.08.2002 in favour of defendant No.7 which is the last Will, but in the alleged Will Ex.P.12, which is at a later point of time on 04.03.2006 is created one. Therefore submitted, Ex.D.1 Will dated 23.08.2002 is the last Will of Tippawwa and in this regard the trial Court has committed error in appreciating the evidence on record. Further submitted that in the alleged Will dated 04.03.2006, there is no mentioning that why the natural legal heirs are deviated who were natural successors

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of Tippawwa. Therefore, this suspicious circumstance is not appreciated by the trial Court in true and correct perspective manner, resulting into passing erroneous judgment and decree. Therefore, prays to allow the appeal by setting aside the judgment and decree passed by the trial Court.

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On the other hand, learned counsel for respondent No.1/plaintiff submitted that Tippawwa executed the 1^st Will dated 23.08.2002, but later on it was cancelled and executed the 2^nd Will dated 04.03.2006 and this fact of cancellation of the 1^st Will is mentioned in the 2^nd Will with reasons why the 1^st Will is cancelled. Therefore, the Will dated 04.03.2006 is the last testament of Tippawwa, which is proved by the attesting witnesses PW.2 to PW.5. Therefore, in this regard the trial Court has correctly appreciated the evidence on record which needs no interference. Therefore, prays to dismiss the appeal.

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Upon hearing the arguments from both the sides and perusing the evidence on record, the points that arise for consideration in this appeal are as under:

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i) Whether, under the facts and circumstances involved in the case, the plaintiff proves that compliance of legal requirement in proving the Will as per Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act?

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ii) Whether, under the facts and circumstances involved in the case, defendants No.1 to 6 prove that the Will dated 04.03.2006 is under suspicious circumstances and are able remove the suspicious circumstances, thus proved Tippawwa has not executed the Will dated 04.03.2006 in favour of the plaintiff?

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The plaintiff has filed the suit for declaration to declare that he is the owner of suit properties on the basis of the alleged Will dated 04.03.2006. The defendants have taken contention that Tippawwa had executed Will dated 23.08.2002, this is the first and last Will. Therefore the alleged Will dated 04.03.2006 stated to have been executed by Tippawwa is created fraudulently. Further it is contention of defendants No.1 to 6 that the said Will dated 04.03.2006 is full of suspicious circumstances.

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Regarding proof of Will, the Hon’ble Supreme

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Court and this Court has laid down various principles of law

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in catena of decisions and among them some of are fruitful

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to mention here which are as under:

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The Hon’ble Supreme Court in the case of

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H.VENKATACHALA IYENGAR Vs. B. N. THIMMAJAMMA AND OTHERS reported in AIR 1959 SC 443, at paragraphs

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No.18, 19, 20 and 21 stipulates as under:

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“18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provision. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, As in the case of proof of wills it would be idle to expect proof with

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mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

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19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

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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 dispositions may not be the result of the

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testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

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21. Apart from the suspicious circumstances above referre to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.”

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Further, I place reliance on the judgment of

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Hon’ble Supreme Court in the case of JAGADISH CHAND

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SHARMA Vs. NARIAN SINGH SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2015) 8 SCC 612, wherein at paragraphs No.21 and 22, it is held as under:

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“ 21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.

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22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.

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22.1. In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in

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case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.

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22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.”

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Further, I place reliance on the judgment of Hon’ble Apex Court in the case of N. KAMALAM (DEAD) AND ANOTHER Vs. AYYASAMY AND ANOTHER reported in (2001) 7 SCC 503, wherein at paragraphs No.1 and 3 it is held as under:

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“ 1. The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest:

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to put it differently and in common parlance, it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills, 12th Edn., p. 129). This Court in the case of Girja Datt Singh v. Gangotri Datt Singh [AIR 1955 SC 346] held that two persons who had identified the testator at the time of registration of the will and had appended their signatures at the foot of the endorsement by the SubRegistrar, were not attesting witnesses as their signatures were not put animo attestandi. In an earlier decision of the Calcutta High Court in Abinash Chandra Bidyanidhi Bhattacharya v. Dasarath Malo [ILR (1929) 56 Cal 598 : AIR 1929 Cal 123] it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In a similar vein, the Privy Council in Shiam Sundar Singh v. Jagannath Singh [54 MLJ 43 : AIR 1927 PC 248] held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision of this Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons [(1969) 1 SCC 573 : (1969) 3 SCR 513] wherein this Court upon reference to Section 3 of the Transfer of Property Act has the following to state: (AIR p. 1151, para 8)

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“It is to be noticed that the word ‘attested’, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him

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a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.”

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2. xxxx…..xxxx…..xxxx…..

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3. Turning on to the former expression onus probandi, it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.”

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Further, I place reliance on the judgment of this

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Court in the case of SRI J. T. SURAPPA AND ANOTHER Vs. SRI SATCHIDHANANDENDRA SARASWATHI

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SWAMIJI PUBLIC CHARITABLE TRUST AND OTHERS

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reported in ILR 2008 KAR 2115 , wherein at paragraphs

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No.23 and 24, it is held as under:

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“ 23. There is one important feature which distinguishes wills from other documents. It is one of the most solemn document known to law. Through it, a dead man entrusts to the living, the carrying out of his wishes. As it is impossible, that he can be called either to deny his signature or to explain the circumstances in which it was made, it is essential that trust worthy and effectual evidence should be given to establish the Will. Therefore, unlike other documents, the Will speaks from the death of the testator. It is ambulatory and it becomes effective and irrevocable on the death of the testator. It is a declaration in the prescribed manner of the intention of the person making it, with regard to the matters which he wishes to take effect upon or after his death. Therefore, when it is propounded or produced before a Court, the testator who has already departed the world, cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of wills, the Court will start on the same enquiry as in the case of the proof of documents. However, in the case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the court could declare a document styled as “Will” is proved.

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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:—

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(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?

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

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

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

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(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?”

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18. The word “Will” is defined under Section 2(h)

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of The Indian Succession Act, 1925 , which reads as

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follows:

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Section 2(h) in The Indian Succession Act, 1925

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“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

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(emphasis supplied by me)

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Ex.D.1 is the Will dated 23.08.2002 which was

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executed in favour of defendant No.7. Ex.P.12 is the Will dated 04.03.2006 alleged to have been executed by Tippavva. In Ex.P.12 Will, which is subsequently executed, the fact of execution of the 1^st Will dated 23.08.2002 is

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mentioned and also mentioned why it was cancelled. The reason for cancellation of the 1^st Will dated 23.08.2002 is

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that the beneficiary of the 1^st Will has failed to lookafter Tippawwa. Therefore, she has changed her mind by cancelling the 1^st Will and executed the 2^nd Will. PW.2 is an advocate and given dictation of Will Ex.P.12 and as per his dictation, the father of PW.5 the scribe has transcribed the Will Ex.P.12. PW.2 has given evidence before the Court that he has also put signature as attesting witness to Ex.P.12 as he has given dictation for preparation of Will to the scribe. Therefore, PW.2 was present during the time of preparation of Will and also during getting registration of the Will at SubRegistrar Office at Ramadurg.

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It is evidence of PW.2 that Tippawwa has given all information and particulars for preparation of Will and according to her instruction he has prepared Will through the scribe namely Krishnaji Phadnis. By the time of giving evidence, Krishnaji Phadnis was no more and therefore his son is examined as PW.5. PW.5 has identified his father’s handwriting and signature on Ex.P.12. Therefore, the evidence of PW.5 is proved to be relevant as per section 69 of the Indian Evidence Act. From the evidence of PW.2,

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execution of Will is proved that Tippawwa has given instruction to him and accordingly had given dictation to the scribe and prepared the Will and therefore she put signature on the Will as witness both at the time of preparation of Will and at the time of getting registration of the Will in the SubRegistrar Office, at Ramadurg.

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PW.3 is another attesting witness who has put signature in the Sub-Registrar Office at the time of registration of the Will, who has deposed that Tippawwa, PW.2, PW.3 and scribe were present in the office of SubRegistrar and the Will got registered and accordingly he was present as attesting witness to the registered Will.

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PW.4 has given evidence that he was present in

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the office of Sub-Registrar in the process of making registration of the Will Ex.P.12.

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Therefore, from all the above said evidence it is proved that Tippawwa was present in the Sub-Registrar Office and had got registered the Will and also before that as per PW.2 gave dictation of Will for preparation. Therefore, it

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is proved that Tippawwa had executed the Will in favour of the plaintiff.

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Also it is proved that why the testator Tippawwa has executed the Will in favour of plaintiff by cancelling the 1^st Will dated 23.08.2002. Therefore, intention of execution of Will in favour of plaintiff by Tippawwa is also proved.

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Therefore, since Tippawwa and Hanamantappa

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had no issues and Tippawwa became widow after death of her husband and therefore she was in care and custody of plaintiff. Therefore, Tippawwa had intended to bequeath the property in favour of plaintiff which is proved in Ex.P.12 Will. Therefore, it is proved that the defendants were deviated. Therefore, there are no any unnatural circumstances are proved in execution of the Will. Therefore the Will is proved to be validly executed and is found to be truthful one.

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The property was situated at Mudalagi village

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which comes within the jurisdiction of Gokak Taluk. But the Will is registered in the office of Sub-Registrar at Ramadurg.

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The Will is not compulsorily registerable document. Registration of the Will is optional one.

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Therefore, even if the Will is registered in the office of Sub-Registrar either at Gokak or at Ramadurg, it does not make any impact about execution of Will. Just because the Will is got registered in the Sub-Registrar Office at Ramadurg, it does not get any suspicious circumstance. The propounder of the Will is none other than the nephew of Tippawwa. It means, the propounder is grandson of her elder brother. Therefore, the Will is proved to be validly executed. Therefore, in this regard the trial Court has correctly appreciated the evidence on record. Hence there is no perversity in appreciating the evidence on record. Therefore correctly decreed the suit. Accordingly I answer point No.1 in the affirmative and point No.2 in the negative.

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Therefore, the appeal is found to be devoid of merit. Hence the appeal is liable to be dismissed. Accordingly the appeal is dismissed by confirming the judgment and

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