Nagaveni W/O.Ramakrishna Hegde Vs Urm Shubhalaxmi W/O.Shantaram Hegde Dead by Lrs

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NC: 2025:KHC-D:1043 RFA No. 992 of 2007

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 21^ST DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO.992 OF 2007 (DEC/PAR)

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BETWEEN:

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NAGAVENI W/O. RAMAKRISHNA HEGDE, AGED ABOUT 76 YEARS, R/O. MANADOOR GRAM, HAKREMANE, TQ. SIRSI-581401.

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VENKATRAMAN RAMAKRISHNA HEGDE, SINCE DECEASED BY HIS LRS,

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2A. LALITA W/O. VENKATRAMAN HEGDE, AGED ABOUT 65 YEARS, OCC. MEDICAL PRACTITIONER, R/O. KUMBAR BIDI, SHIVAMOGGA, DIST. SHIVAMOGGA-577201.

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

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2B. MURALI S/O. VENKATRAMAN HEGDE, AGED ABOUT 39 YEARS, OCC. PRIVATE JOB, R/O. KUMBAR BIDI, SHIVAMOGGA, DIST. SHIVAMOGGA-577201.

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…APPELLANTS

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(BY SRI VISHWANATH HEGDE, ADVOCATE FOR A2 (A AND B) SRI K.S. PATIL, ADVOCATE FOR A1.)

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AND:

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UFM SHUBHALAXMI W/O. SHANTRAM HEGDE, SINCE DECEASED BY HER LRS,

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RAMAKRISHNA SHANTRAM HEGDE, SINCE DECEASED BY HIS LRS.

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1A. SHASHIKALA W/O. RAMAKRISHNA HEGDE, AGED ABOUT 56 YEARS, OCC. AGRICULTURE, R/O. HAKREMANE, PO: SALKANI, TQ. SIRSI, DIST. UTTARA KANNADA-581402.

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1B. SHRUTI D/O. RAMAKRISHNA HEGDE, AGED ABOUT 25 YEARS, OCC. AGRICULTURE, R/O. HAKREMANE, PO: SALKANI, TQ. SIRSI, DIST. UTTARA KANNADA-581402.

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RAGHAVENDRA SHANTARAM HEGDE, S/O. SHANTRAM HEGDE, AGED 41 YEARS,

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MANJUNATH SHANTRAM HEGDE S/O. SHANTRAM HEGDE, SINCE DECEASED BY HIS LR’S

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3A. GEETA W/O. MANJUNATH HEGDE, AGED ABOUT 48 YEARS, OCC. HOUSEHOLD, R/O. HAKREMANE, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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3B. SHUBHA D/O. MANJUNATH HEGDE, AGED ABOUT 21 YEARS, OCC. STUDENT, R/O. HAKREMANE, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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3C. SINCHANA D/O. MANJUNATH HEGDE, AGED ABOUT 17 YEARS, OCC. STUDENT, R/O. HAKREMANE, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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3D. SHANTARAM S/O. MANJUNATH HEGDE, AGED ABOUT 12 YEARS, OCC. STUDENT, R/O. HAKREMANE, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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SINCE RESPONDENTS NO.3C AND 3D ARE MINORS REPRESENTED BY THROUGH NATURAL MOTHER GUARDIAN

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GEETA W/O. MANJUNATH HEGDE, AGED ABOUT 48 YEARS, OCC. HOUSEHOLD, R/O. HAKREMANE, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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REKHA W/O. SHARACHANDRA HEGDE, SINCE DECEASED BY HER LR’S

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4A. VENKATRAMAN S/O. SHARACHANDRA HEGDE, AGED ABOUT 23 YEARS, OCC. AGRICULTURE, R/O. MENSIKERI, HEEPNALLI, TQ. SIRSI, DIST. UTTARA KANNADA-581403.

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RAMAKRISHNA S/O. SHANTARAM HEGDE S/O. SHANTARAM HEGDE, AGED ABOUT 40 YEARS, R/O. HAKREMANE, TQ: SIRSI-581401.

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RAGHAVENDRA SHANTARAM HEGDE S/O. SHANTARAM HEGDE, AGED ABOUT 31 YEARS, R/O. HAKREMANE, TQ: SIRSI-581401.

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TIMMAYYA S/O. RAMAKRISHNA HEGDE, SINCE DECEASED BY HIS LR’S

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7A. PADMAVATHI W/O. TIMMAYYA HEGDE, AGED ABOUT 80 YEARS, OCC. HOUSEHOLD, R/O. BADAGIGADDE, MANADUR, PO. SALKANI, DIST. UTTARA KANNADA-581403.

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7B. GEETA D/O. TIMMAYYA HEGDE, AGED ABOUT 60 YEARS, OCC. HOUSEHOLD, R/O. BADAGIGADDE, MANADUR, PO. SALKANI, DIST. UTTARA KANNADA-581403.

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7C. SUMATHA W/O. NAGAPATI HEGDE, AGED ABOUT 58 YEARS, OCC. HOUSEHOLD, R/O. HUTGAR, SIRSI, DIST. UTTARA KANNADA-581401.

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7D. SATYANARAYAN S/O. TIMMAYYA HEGDE, AGED 55 YEARS, OCC. AGRICULTURE, R/O. BADAGIGADDE, MANADUR, PO. SALKANI, DIST. UTTARA KANNADA-581403.

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7E. ROOPA W/O. RAGHUPATI HEGDE, AGED 52 YEARS, OCC. HOUSEHOLD, R/O. JALABHOOMI, KOLIGAR, PO. SALKANI, DIST. UTTARA KANNADA-581403.

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7F. RESHMA W/O. KRISHNAMURTHY, AGED 49 YEARS, OCC. HOUSEHOLD, R/O. HOUSE NO.82, ‘DWIJAPRIYA’

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‘D’ BLOCK, SWAMI VIVEKANANDA EXTENSION, GOPAL EXTENSION, SHIVAMOGGA-577205.

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7G. SRINATH S/O. TIMMAYYA HEGDE, AGED 46 YEARS, OCC. AGRICULTURE, R/O. BADAGIGADDE, MANADUR, PO: SALKANI, DIST. UTTARA KANNADA-581403.

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KESHAVA S/O. RAMAKRISHNA HEGDE S/O. RAMAKRISHNA HEGDE, AGED ABOUT 41 YEARS,

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BOTH ARE R/O. MANADUR GRAMA, HAKREMANE, TQ. SIRSI-581401.

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INDIRA W/O. MOHAN HEGDE, AGED ABOUT 55 YEARS, OCC. HOUSEHOLD, R/O. BANDAGADDE, TQ. SIRSI-577401.

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TARA W/O. PARAMESHWARA BHATT, AGED ABOUT 53 YEARS, OCC: HOUSEHOLD, R/O. BHUGARIGADDE, TQ. BHATKAL-581330.

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SHAMALA W/O. SUBRAMANYA BHAT, AGED ABOUT 46 YEARS, OCC: HOUSEHOLD, R/AT. HALAPPA CIRCLE, ASHWONI CLINIC, BHADRAVATI, SHIVAMOGGA-577301.

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MANJUNATH S/O. SHANTARAM HEGDE, S/O. RAMAKRISHNA HEGDE, AGED ABOUT 38 YEARS, R/O. MANADOOR GRAM, HAKREMANE, SIRSI TALUK, U.K.DIST.-581401.

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…RESPONDENTS

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(BY SRI JEEVAN J.NEERALGI, ADVOCATE FOR R6; SRI B.V. SOMAPUR, ADVOCATE FOR R9 TO R11; R1 (DECEASED); NOTICE TO R1A, R1(B), R2, R3(A), R3(B) ARE SERVED; (R3 (C AND D) ARE MINOR’S REPRESENTED BY R3(A)); R4-DECEASED; NOTICE TO R4(A), R5, R7(A), R7(C), R7(D) R7(E), R7(G), R8 AND R12 ARE SERVED; R7(B) AND R7(F) HELD SUFFICIENT).

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (SR.DN) SIRSI, IN O.S.NO.139/1993 DATED 02.02.2007 AND TO ALLOW THIS APPEAL AND TO DISMISS THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,.

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THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER HEARING 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 Regular First Appeal is filed by the defendants No.1 and 3 challenging the judgment and decree passed in O.S.No.139/1993 dated 02.02.2007 by the Court of Civil Judge (Sr.Dn.), Sirsi.

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For the purpose of convenience and easy

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

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Plaintiffs’ case:

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3. Brief facts of the case of the plaintiffs.

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The plaintiffs have filed a suit for declaration to declare

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that by virtue of the Will stated to have been executed by Ramakrishna Hegde dated 26.12.1984, the plaintiffs have

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become the owners of suit schedule ‘A’ property and also to declare that alleged Will executed by Ramakrishna Hegde dated 25.09.1985 in favour of defendant No.1 is illegal, by playing fraud and under misrepresentation and the consequential relief restraining the defendants from interfering with suit schedule ‘A’ property and also for partition and separate possession of B, C and D properties to the extent of 1/8^th share to the plaintiffs.

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It is pleaded that one Ramakrishna Hegde is the original propositus. He had 1^st wife by name Gowri. Husband of plaintiff No.1 namely Shantharam Hegde and the defendant No.2 are sons of Ramakrishna Hegde and his 1^st wife Gowri. The defendant No.1 is the 2^nd wife of Ramakrishna Hegde. Defendant Nos.4 to 6 are the children of Ramakrishna Hegde and defendant No.1. The deceased Ramakrishna Hegde has obtained the suit properties in the family partition which took place on 16.01.1978 among his brothers and parents. Thus, in this way Ramakrishna Hegde bequeathed the suit schedule properties. The said Ramakrishna Hegde died on 07.10.1985.

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It is the case of the plaintiffs that the deceased Ramakrishna Hegde has executed a Will dated 26.12.1984 during his lifetime bequeathing suit schedule ‘A’ property in favour of his son Shantharam who is husband of plaintiff No.1 and father of defendants No.2 and 3. Accordingly, the plaintiff has produced varadi before authorities to mutate the name in the records and thus, came into possession of suit schedule ‘A’ properties by virtue of the same Will. Therefore, claimed that the plaintiffs have become absolute owners of the suit schedule properties.

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It is further pleaded that defendants No.1 and 3 to 7 have created a Will dated 25.09.1985 which is outcome of fraud and illegal. Therefore, filed the above suit for declaration and partition.

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Case of Defendants:

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The defendant No.1 has filed written statement and same has been adopted by defendants No.3 to 7. The defendants have denied pleadings of the plaintiffs. The defendants No.1 and 3 to 7 have taken pleading that the

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deceased Ramakrishna Hegde never executed the Will dated 26.12.1984 but has executed the Will dated 25.09.1985 in favour of defendant No.1 in respect of all the suit schedule properties. Therefore, prays to dismiss the suit.

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Upon the pleadings of the parties, the trial Court

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has framed following issues:

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i. Whether the plaintiff proves the factum and validity of the suit Will deed dtd: 26.12.1984?

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ii. Whether the plaintiff proves that even prior to the suit will deed dtd: 26.12.1984, suit schedule ‘A’ properties are in possession of herself and her husband?

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iii. Whether the plaintiff proves that by virtue of the suit will deed dtd: 26.12.1984, she became the absolute owner of suit schedule ‘A’ property?

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iv. Whether the plaintiff proves that the alleged will deed dtd: 25.09.1985 is got up and concocted one and hence it is illegal and void?

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v. Whether the plaintiff further proves that deceased Ramakrishna Hegde was not physically and mentally competent and he was under the control of defendants 1 and 3?

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vi. Whether the plaintiff proves that in the capacity of L.R. of deceased Ramakrishna Hegde, she has got 1/8 share and right in the suit schedule B, C and D properties?

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vii. Whether the plaintiff proves the alleged interference and obstruction caused by

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defendants 1 and 3 in her possession and enjoyment of the suit schedule ‘A’ property?

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viii. Whether the defendant No.1 proves the factum and validity of the alleged Will deed dt: 25.09.1985?

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ix. Whether the defendant No.1 proves that he has got exclusive right over the suit schedule properties?

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x. Whether the defendant No.1 proves that court fee paid is not proper and sufficient?

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xi. Whether the plaintiff is entitle for partition and separate possession?

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xii. If so, what is the share of plaintiff and defendants, and in which properties?

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xiii. What Order or Decree?

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The plaintiff No.1 is examined as PW-1 and examined one attesting witness stated to have been witnessed Will dated 26.12.1984 as PW-2 and got marked documents as Exs.P-1 to P-18. The defendant No.3 is examined as DW-1 and one witness stated to have been witnessed execution of Will dated 25.09.1985 is examined as DW-2 and got marked documentary evidence as Ex.D1 to D4.

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Reasoning of Trial Court:

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The trial Court after appreciating evidence on record, has decreed the suit of the plaintiffs declaring that the plaintiffs have become owners of the property by virtue of Will dated 26.12.1984 and further declared that the Will dated 25.09.1985 executed in favour of defendant No.1 is invalid, illegal and outcome of fraud. During pendency of the suit, plaintiff No.1 died, therefore, her legal heirs have come on record as plaintiffs No.1(a) to 1(d). The trial Court has declared that the plaintiffs No.1(c) and 1(d) and plaintiffs No.2 and 3 and defendant No.8 together are entitled for 1/8^th share in the suit schedule ‘B’ property and defendants No.1 to 7 are entitled for 1/8^th share in the suit schedule ‘B’ property. The suit with regard to suit schedule ‘C’ and ‘D’ properties is dismissed. The trial Court assigned the reason that the plaintiffs proved execution of Will dated 26.12.1984 as per Section 63 of Indian Succession Act and 64 of Indian Evidence Act and also the trial Court has held that the Will dated 25.09.1985 is not proved. The trial Court believed the attesting witness PW-2 in respect of Will dated 26.12.1984

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and disbelieved the other side attesting witness DW-2 in respect of Will dated 25.09.1985. Thus, in this way, it is held that the Will dated 26.12.1984 is proved. Therefore, decreed the suit.

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Being aggrieved by this, defendant Nos.1 and 3 have preferred the appeal before this Court by raising various grounds. The defendant Nos.1 and 3 have raised ground that there is no good relationship between Ramakrishna Hegde and defendant No.1-her husband. Ramakrishna Hegde was residing in the house of defendant No.1 during his last days. Therefore, out of love and affection, since, defendants No.1 and 3 to 7 were looking after the deceased, the Will was executed. Further, raised ground that the deceased had not intended to execute the Will dated 26.12.1984. Therefore, this Will is created and concocted. Hence, it is urged that the trial Court has not appreciated the evidence on record correctly in appreciating evidence regarding proof of Will. Just because there is proximity of date of execution of Will and date of death is not a fact to say that the deceased was not in good state of

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mental health. It is raised ground that the very fact that the deceased was residing along with defendant No.1 and defendant No.1 was looking after the deceased itself is a factor proves that the deceased executed Will dated 25.09.1985 which is not correctly appreciated by the trial Court. Hence, resulting into erroneous judgment and decree passed by the trial Court. Hence, prays to allow the appeal by setting aside the judgment and decree passed by the trial Court.

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Heard arguments from both sides and perused the records. The points that arise for consideration in this appeal are as follows:

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i. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that the deceased Ramakrishna Hegde had executed the Will dated 26.12.1984 in favour of husband of the plaintiff No.1 by name Shantharam?

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ii. Whether, under the facts and circumstances involved in the case, the defendants No.1 and 3 to 7 have proved the fact that deceased Ramakrishna Hegde had executed the Will dated 25.09.1985 in favour of defendant No.1?

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iii. Whether the judgment and decree passed by the trial Court requires interference by this Court?

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Submission of Defendants-Appellants:

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Learned counsel for the appellants/defendants No.1 and 3 have argued that the deceased Ramakrishna Hegde has not executed the Will dated 26.12.1984 during his last days, the deceased was residing along with defendant No.1. Therefore, out of love and affection, as he was being looked after by defendant No.1 and her children, had executed Will dated 25.09.1985. In this regard, the appellants/defendants No.1 and 3 have proved the intention of the testator for executing the Will in favour of the defendant No.1. But on the contrary, the plaintiffs failed to prove execution of Will dated 26.12.1984 as the evidence of the attesting witness PW-2 does not inspire confidence of the Court in proving the Will.

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It is further submitted that mere legal compliance in proving the Will are not sufficient. But the propounder of the Will has to remove surrounding suspicious circumstances. But the plaintiffs have failed to remove

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suspicious circumstances even by leading evidence of PW-2 alleged to have witnessed execution of Will, whereas, the defendant No.1 has proved the execution of Will dated 25.09.1985 by examining attesting witness DW-2 and not only this, also proved the intention of the testator to bequeath all the suit schedule property in favour of defendant No.1. But in this regard, the trial Court has not appreciated evidence on record correctly. Therefore, prays to allow the appeal and set aside the judgment and decree passed by the trial Court.

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Submission of Respondents-Plaintiffs:

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On the other hand, learned counsel for respondents/plaintiffs justified the judgment and decree passed by the trial Court. It is argued that though there are two Wills and both plaintiffs and defendants have examined their respective attesting witnesses, but the legal compliance and removal of suspicious circumstances are proved by the evidence of PW-2 but not by attesting witness DW-2. Therefore, justified the judgment and decree passed by the trial Court and prays to dismiss the appeal.

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ANALYSES:

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There are two Wills, one is dated 26.12.1984 stated to have been executed by Ramakrishna Hegde in favour of Shantharam as per Ex.P-15. There is another Will dated 25.09.1985 stated to have been executed by Ramakrishna Hegde in favour of defendant No.1 as per Ex.D1. Ramakrishna Hegde died on 07.10.1985. The suit is for partition of suit schedule A, B, C and D properties. As per plaintiffs, the testator has executed Will bequeathing ‘A’ schedule properties and accordingly prays for declaration in respect of ‘A’ schedule properties and sought for partition in B, C and D properties. It is the case of the defendants No.1 and 3 to 7 that the testator executed Will dated 25.09.1985 and is the last Will as per pleading of the defendants.

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The Hon’ble Apex Court and this Court in several decisions have laid down principle of law regarding proving of the Will which are as follows:

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The Hon’ble Supreme Court in the case of H.VENKATACHALA IYENGAR Vs. B. N. THIMMAJAMMA

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AND OTHERS reported in AIR 1959 SC 443, at Para

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Nos.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 mathematical certainty. The test to be applied would be the usual test of the

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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

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not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

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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

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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 Hon’ble Supreme Court in the case of JAGADISH CHAND SHARMA Vs. NARIAN SINGH SAINI (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2015) 8 SCC 612, wherein at Para Nos.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

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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 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

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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

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in (2001) 7 SCC 503, wherein att Para Nos.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: to put it differently and in common parlance, it means intent to attest. As regards the latter maxim, the attesting witness must subscribe

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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

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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 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

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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 reported in ILR 2008 KAR 2115 , wherein at Para Nos.23

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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

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

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of The Indian Succession Act, 1925 , which reads as 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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Here there are two Wills in the suit. The plaintiffs

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are claiming that Ramakrishna Hegde had executed Will in favour of his son Shantaram on 26.12.1984 as per Ex.P.15. Rivalry is, defendants No.1 and 3 are claiming that Ramakrishna Hegde had executed Will in favour of defendant No.1 on 25.09.1985 as per Ex.D.1. PW.2 is the attesting witness to the Will Ex.P.15. DW.2 is the attesting witness to the Will Ex.D.1. Ramakrishna Hegde died on 07.10.1985. Upon considering the evidence of PW.2 attesting witness, he has stated that the testator had already got prepared the Will and requested PW.2 and other witness to come to the home and thereafter he read over the Will already prepared

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and after reading over the Will, the testator had put signature and thereafter PW.2 and other witness have put their signatures. This is the evidence given by PW.2.

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Upon considering Ex.P.15 and evidence of PW.2, there are discrepancies found by making correction by inserting the figure 5 in the place of 4. Therefore, it is contended by defendants that the Will is amounting to dated 26.12.1985 and also there are two different inks found on the last page of the Will Ex.P.15 which is admitted by PW.2 in the evidence. Therefore, considering these discrepancies, it goes to the core of the case making suspicion on the Will.

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Furthermore, PW.2 had stated that deceased had intended to bequeath the property in favour of husband of plaintiff No.1. But defendant No.1 is the 2^nd wife. After death of the 1^st wife, the testator had solemnized the 2^nd marriage with defendant No.1. Defendants No.3 to 7 are also natural legal heirs and they cannot be treated as illegitimate children. The marriage of defendant No.1 with the testator was solemnized after the death of the 1^st wife. This fact is not disputed by the plaintiffs. Therefore, defendants No.3 to

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7 are also considered as natural legal heirs. But in the Will Ex.P.15, there is no mentioning or any reasons that why the testator had deprived defendants No.3 to 7 who are also legal heirs through the 2^nd wife.

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Therefore, considering all these aspects, execution of Will Ex.P.15 is found to be difficult to accept as proved one. It is not only the proof of legal requirement as per section 63 of the Indian Succession Act and as per section 68 of the Indian Evidence Act, but also found that the propounder of the Will shall have to remove all suspicious circumstances. But upon considering as above stated, there are discrepancies found in mentioning the year whether it is 1984 or 1985 as there is overwritten on the year 1984 by mentioning the letter as 5 in the place of 4. Also there is another different thing found in Ex.P.15 Will that the other legal heirs have not been mentioned why they are deviated. Therefore, upon consideration of these evidence in this regard, it is the Will Ex.P.15 found to be suspicious one. Hence it cannot be said that it is proved one.

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Likewise, upon considering Ex.D.1 Will dated 25.09.1985, DW.2 is the attesting witness. DW.2 has stated that testator executed the Will on 25.09.1985. The testator died on 07.10.1985 within a span of 12 days from 25.09.1985. Though legal requirement regarding proof of Will are satisfactorily complied with as contended by the learned counsel for appellants/defendants, but there are other circumstances to be considered.

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From the evidence it is proved that before death of the testator he was admitted to the hospital and also the proximity of execution of alleged Will and the date of death of testator is hardly 12 days. It is also proved that defendant No.1 at the time of execution of the Will was present, which proves the active participation of defendant No.1 in making the Will. Therefore, as discussed above, though the legal requirements for proving the Will are complied with, but the propounder of the Will shall have to remove the other suspicious circumstances. But the defendants have failed to remove the other suspicious circumstances. Upon

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considering Ex.D.1 Will, and evidence of PW.2, the Will at Ex.D.1 is also not proved.

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Therefore, considering the principle of law laid down by the Hon’ble Supreme Court and by this Court as above discussed, execution of Will as per Ex.P.15 and Ex.D.1 are not proved. Therefore, the propounder of both Wills have failed to prove execution of Will. In this regard the finding given by the trial Court is perverse and thus is liable to be set aside.

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Therefore, when in the appeal both Wills are found to be not proved, stated to have been executed by the testator, therefore the propounders will not get any benefit out of those Wills. Hence, if the Wills are taken away, then it will be considered as the deceased died as intestate. Admittedly the deceased is the original propositus who had two wives by name Gouri and defendant No.1 Nagaveni. The deceased Ramakrishna Hegde married defendant No.1 i.e., the 2^nd marriage after death of the 1^st wife. The husband of plaintiff No.1 is the son of the propositus Ramakrishna Hegde. Defendant No.2 and 8 are also sons of Ramakrishna

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Hegde through the 1^st wife Gouri. Defendants No.3 to 7 are children of Ramakrishna Hegde through the 2^nd wife Nagaveni. Therefore, all are entitled for equal share in all the suit schedule properties. Therefore the suit filed by the plaintiffs is liable to be decreed for partition. Hence in this regard the findings given by the trial Court that the plaintiffs have become owner by virtue of Will Ex.P.15 so far as the suit schedule properties, is set aside. Hence the plaintiffs and defendants being the coparceners are entitled for equal share of 1/8^th each in the suit schedule A and B properties.

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Therefore, the appeal filed by defendants No.1 and 3 is allowed in part. Hence the judgment and decree passed by the trial Court is liable to be set aside so far as the relief of declaration granted and confirmed so far as the parties are entitled for partition. Accordingly I answer point No.1 and 2 in the negative and point No.3 in the affirmative. Therefore, I proceed to pass the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The judgment and decree dated 02.02.2007,

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passed by the Civil Judge (Sr.Dn.), Sirsi, in O.S.No.139/1993 is set aside so far as declaring that the plaintiffs are absolute owners of the suit schedule properties by virtue of the Will dated 26.12.1984 and confirmed so far as the relief of partition is granted.

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iii) The plaintiffs and defendants being coparceners are equally entitled for 1/8^th share each in all the suit schedule properties.

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iv) No order as to costs.

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v) Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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RKM-para 1 to 22. MRK-para 23 to end. CT: UMD. List No.: 1 Sl No.: 17

Nagaveni W/O.Ramakrishna Hegde v. Urm Shubhalaxmi W/O.Shantaram Hegde Dead by Lrs

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Nagaveni W/O.Ramakrishna Hegde v. Urm Shubhalaxmi W/O.Shantaram Hegde Dead by Lrs

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