Smt. Shaila Sampath Vs Sumanchanderpal

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.08.2016 PASSED IN RA.NO.84/2010 BY III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 23.04.2010 PASSED IN O.S.NO.72/2003 BY II ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, D.K.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This Regular Second Appeal is preferred by the defendants being aggrieved by the impugned judgment and decree dated 02.08.2016 passed in RA.No.84/2010 by III Additional District and Sessions Judge, D.K., Mangaluru (for short, 'the first Appellate Court'), whereby the judgment and decree dated 23.04.2010 passed in O.S.No.72/2003 by II Additional Senior Civil Judge, Mangalore, D.K. (for short, 'the trial Court'), came to be set-aside and the suit of the plaintiff was decreed by awarding 1/3^rd share in the 'A' and 'B' schedule properties.

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For the sake of convenience, the parties shall be

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referred to as per their status before the trial Court.

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Brief facts of the case are as under:

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The plaintiff filed a suit for partition against the defendants seeking for division of plaint 'A' and 'B' schedule properties into three equal shares, i.e. one share

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to the plaintiff and one each share to the defendants and

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for the income from 'B' schedule property.

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3.1 According to the plaintiff, 'A' schedule property belonged to the father of the plaintiff and defendants namely, Late B.Seetharama. It is the further case that their father Sri Seetharama died intestate on 14.10.1997.

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It is the case of the plaintiff that his father acquired 'A' schedule property by way of compromise decree passed in a partition suit in O.S.No.97/1993 on the file of the Principal Civil Judge, Mangaluru. The plaintiff and the defendants succeeded to the properties of their father along with their mother, morefully to the 'A' schedule property, but after the death of the mother of the plaintiff and the defendants on 05.01.1998, the plaintiff and the defendants jointly succeeded to the 'A' schedule property and they became the absolute owners of the 'A' schedule property. Accordingly, the plaintiff being one of the sons of Late B.Seetharama, claimed 1/3^rd share in the 'A' schedule property and consequently, in the 'B' schedule

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property, which originally belonged to his mother namely, Smt.Jalajakshi. Therefore, it is the case of the plaintiff that subsequent to the death of their father and mother, the plaintiff and defendants have succeeded to their respective properties and they would each be entitled to one share each in both 'A' and 'B' schedule properties.

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3.2 It is the further case of the plaintiff that as the 'B' schedule property in the occupation of defendant No.1 and the same consisted of three residential buildings and two other houses, which were let out on a monthly rent by the defendants. Hence, the plaintiff would be entitled to the share in the rental income from the portion of the 'B' schedule property, so also, it is stated that the schedule properties also consist of 50 coconut trees and fetching an annual income of about Rs.15,000/-. Therefore, the plaintiff would be legally entitled to 1/3^rd share.

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3.3 It is the case of the plaintiff that he had mental depression in the year 1980, due to which, his education was discontinued. Initially, he was not married. The

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defendants though younger to the plaintiff, got married. However, after a prolonged treatment, the plaintiff slowly recovered from his illness and later, got married at the age of 44 years. In view of the fact that the plaintiff had mental depression and the defendants were well placed in

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their life, they are making efforts to knock off the properties of the plaintiff. Therefore, the plaintiff expressed his intention to divide the suit schedule properties into three equal shares, which was avoided, resisted and prolonged by the defendants for one reason or the other. Hence, the plaintiff was constrained to file a suit for partition.

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3.4 The defendants appeared before the trial Court

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on receipt of notice and filed their detailed written statement denying the claim of the plaintiff and claimed that both their father and mother during their lifetime had executed registered Wills with regard to the properties in question and accordingly, sought to defend the case by contending that they are the beneficiaries of the Wills as

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legatees and plaintiff does not have any share over the schedule properties and has filed a false and frivolous suit. It is the further case of the defendants that the plaintiff is not entitled for any share over the schedule properties, since parents of the defendants executed registered Wills in favour of them. They are the absolute owners of the suit schedule properties and accordingly, the plaintiff is not entitled to any share much less as claimed and accordingly, sought for dismissal of the suit.

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

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"1) Whether the plaintiff proves that his father and mother died intestate and himself and defendants become the absolute owners of plaint 'A' schedule properties?

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2) Whether the plaintiff proves that he is having 1/3^rd right in the plaint schedule property?

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3) Whether the defendants prove that his father and Jalajakshi had executed registered Wills separately on 11.9.1996 in their favour?

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4) Whether the defendants prove that suit is not properly valued and court fee paid by the plaintiff is in sufficient?

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5) Whether the plaintiff proves that he is entitled for reliefs as prayed for?

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6) What Order or Decree? Recasted issue No. 3 (dt. 24.3.2010)

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Whether the defendants prove that their father -

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B. Seetharam and their mother- Jalajakshi had executed their Last Will separately on 11.9.1996 in their favour while they were in sound disposing state of mind?"

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3.6 In order to substantiate his case, the plaintiff got examined himself as PW.1 and five other witnesses as PWs.2 to 6 and got marked documents as Exs.P1 to P43, whereas defendant No.2 examined as DW.1 and two other witnesses as DWs.2 and 3 and got marked documents as Exs.D1 to D9.

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3.7 On the basis of the materials placed on record,

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both oral and documentary, the trial Court did not agree

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with the contentions put-forth by the plaintiff and

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dismissed the suit.

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3.8 Being aggrieved by dismissal of suit, the plaintiff preferred an appeal in RA.No.84/2010 before the first Appellate Court on several grounds urged therein.

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3.9 The first Appellate Court, after hearing learned counsel for plaintiff as well as learned counsel for defendants, formulated the following points for

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consideration:

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"1. Whether the appellant/plaintiff proves that his parents Mr. Seetharama and mother Smt. Jalajakshi died intestate and is entitled for 1/3^rd share in the A and B schedule properties belonging to them respectively?

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2. Whether the respondents/defendant Nos.1 and 2 proves that their parents in the sound disposing state of mind had bequeathed A and B schedule properties in their favour under the registered Will dated 11.9.1996?

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3. Whether the judgment of dismissal passed by the Trial Court calls for interference of this Court?

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4. What Order?"

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3.10 On re-appreciation and re-evaluation of the

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entire evidence, the first Appellate Court came to the conclusion that there is no dispute with regard to relationship of the plaintiff and defendants. It is also not in dispute that the ownership of the plaintiff and defendants over the suit schedule properties, so also, the acquisition of 'A' schedule property by the father of the

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plaintiff and defendants by way of compromise decree passed in O.S.No.97/1993 by the Principal Civil Judge, Mangaluru vide Exs.P15 to P26 and the mother of the plaintiff acquired 'B' schedule property through her father;

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the fact with regard to the plaintiff suffering from mental depression initially and later, he was treated and cured, is not in dispute.

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3.11 The first Appellate Court has relied on the evidence of Dr.Keshava Bhat, who was examined as PW.4 and treated the plaintiff for depression and he had given treatment to the plaintiff continuously for two years and

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he has produced a document at Ex.P39 for providing treatment to the plaintiff. So also, the evidence of PWs.2 and 3 was taken into consideration along with PWs.5 to 7 and being satisfied with the same, the first Appellate Court relying upon the evidence of Dr.V.K.Bhat, who was examined through Commissioner as CW.1, agreed with the plaintiff with regard to the medical treatment given to the father and mother of the plaintiff, who were suffering from

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cancer and mental depression respectively and that the mother of the plaintiff was suffering from immense depression, fear and delusion.

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3.12 The first Appellate Court, considering the materials placed on record by the defendants, has observed that it is the defence of the defendants that the plaintiff is not entitled to any share in the properties, in

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view of their parents having executed separate Wills in favour of the defendants, wherein their parents were the attesting witnesses. The first Appellate Court has further observed that the parents of the plaintiff and the defendants were aged and suffering from cancer and oldage ailments including mental depression. The first Appellate Court came to the conclusion that there is suspicious circumstances surrounding the Wills executed by the parents of the plaintiff and defendants for the reason that the plaintiff being the elder son, who was suffering mental depression was not given any share in the properties and the details of the properties are not mentioned in the alleged Wills. Hence, the first Appellate Court came to a conclusion that 'A' and 'B' schedule properties undoubtedly belong to the parents of the plaintiff and defendants and pursuant to their death, the plaintiff and defendants would get 1/3^rd share each from the properties of their parents.

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3.13 The first Appellate Court also came to the conclusion that the defendants failed to establish that their parents were in sound state of mind while they executed the Wills bequeathing the schedule properties in favour of the defendants vide Exs.D1 and D2. On these grounds, the first Appellate Court found favour with the plaintiff and answered the points for consideration against the defendants. Accordingly, allowed the appeal and set-aside the judgment and decree passed by the trial Court and consequently, decreed the suit by granting 1/3^rd share in the 'A' and 'B' schedule properties. However, rejected the prayer with regard to the account of the income from 'B' schedule property.

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3.14 Being aggrieved by the judgment and decree passed by the first Appellate Court, the defendants are before this Court questioning the legality and correctness of the same.

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It is the vehement contention of Sri Dhananjay

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Kumar, learned counsel for appellants-defendants that the

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impugned judgment and decree passed by the first Appellate Court is not sustainable in law. The first Appellate Court has failed to take into consideration the oral and documentary evidence and also failed to draw proper and correct inferences from the records and the admitted facts. It is further contention that the first Appellate Court has erred in reversing the finding of the trial Court as regards the proof of execution of the Wills at Exs.D1 and D2 executed by the father and mother respectively of the plaintiff and the defendants. Therefore, impugned judgment and decree passed by the first Appellate Court is arbitrary, perverse, illegal, contrary to the material evidence on record and the evidence adduced by the parties. Hence, the same requires to be set-aside and the judgment and decree rendered by the trial Court requires to be affirmed.

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4.1 It is further contention of learned counsel for

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defendants that Exs.D1 and D2 are the registered Wills executed by the father and mother respectively. The

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execution of the said registered Wills before the SubRegistrar have been admitted and once the registration of the Wills is admitted, there is presumption of due execution of the Wills at Exs.D1 and D2.

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4.2 It is further contended by learned counsel that DW.2-B.Sundar Rao, Advocate was the scribe of the Wills at Exs.D1 and D2, who has clearly stated that he has drafted the said Wills in accordance with the instructions. The same were read over to the executants and signed in his presence and it was attested by each of the parents in their respective Wills. It is also the contention that DW.2 has also attested the Wills as an attesting witness and the evidence of said attesting witness-DW.2 could not have been brushed aside by the first Appellate Court. Further, the evidence of DW.2 was not shaken in the crossexamination. The first Appellate Court could not have taken a contrary view as taken by the trial Court. It is also contended that the signatures of the attestors

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including DW.2 and the genuineness of the same has not

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been challenged in the cross-examination.

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4.3 It is the further contention of learned counsel for appellants-defendants that the plaintiff has not alleged fraud or made out any case of fraud in the execution of the Wills. It is also contended that the properties of the parents of the appellants-defendants were self acquired properties, as they have secured the same by virtue of compromise decree by the father and partition deed by the mother, which ended up in a compromise petition.

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4.4 It is further contended that the first Appellate Court has committed an error with regard to suspicious circumstance surrounding the execution of Wills at Exs.D1 and D2 on the only ground that no properties were given to the share of respondent-plaintiff, who is elder son of the deceased parents. However, the first Appellate Court has failed to appreciate that the Wills executed by the father and mother clearly mention that the plaintiff has got other

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immoveable property and more money was spent on his education, so also, money was spent towards his marriage expenses and the parents have contributed investment for the business of the plaintiff. He further contended that the

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trial Court has also failed to take into consideration that the plaintiff had admitted that he was studying in an Engineering College at Surat and the parents were sending money for his education. Later, he discontinued his education and again, he continued his education in the very same Engineering College at Surat, so also, the first Appellate Court has not taken into consideration that the admission of the plaintiff/PW-1 that he has not attended

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the function of 50 years wedding life of his parents, which would show the relationship of the plaintiff with his parents was strained.

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4.5 It is further contended that the execution of the

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Wills has been proved, so also, the requirement of the proof of the Wills has been established by the appellantsdefendants by examining three witnesses and one being

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the attesting witness i.e. DW.2 and the other attesting witnesses in each of the Wills at Exs.D1 and D2 were not available due to death, therefore the question of examining them would not arise as the mother and father in each of respective Wills were the first attesting witnesses and the second attesting witness is none other than B.Sundar Rao, Advocate, who was examined as DW.2, drafted the Will. Therefore, it is the contention of learned counsel for appellants-defendants that the first Appellate Court has committed a serious error in reversing the finding of the trial Court, which dismissed the suit of the plaintiff. It is also contended that merely for the reason that no property was given to the plaintiff, the registered will cannot be held to be not valid or creation of any suspicious circumstances.

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4.6 Learned counsel for defendants relies upon the judgment of the Hon'ble Apex Court in the case of Surendra Pal and others v. Dr. (Mrs.) Saraswati

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Arora and another reported in AIR 1974 SC 1999.

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Per contra , Sri Udaya Prakash Muliya, learned

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counsel for respondent-plaintiff sustains the impugned judgment and decree passed by the first Appellate Court by contending that there is no perversity or illegality committed by the first Appellate Court and on careful analysis and reconsideration of the entire materials placed on record, it has rightly come to the conclusion by setting aside the judgment and decree passed by the trial Court and rightly decreed the suit by granting 1/3^rd share in the suit schedule properties to the plaintiff as well as to the defendants, as all three children are equally entitled to a share in the properties of their father and mother.

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5.1 It is further contention of learned counsel that plaintiff is the elder brother of the defendants. The parents were the absolute owners of 'A' and 'B' schedule properties. It is further contended that the defendants are

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the younger sister and younger brother of the plaintiff respectively, who have played fraud and undue influence

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on his parents and got the Wills executed in their favour by force, coercion and threat. It is further contended that as the plaintiff was under mental depression and he got married at late age of 44 years, during which time, both

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his younger siblings were married. They have taken this opportunity to coerce the parents and concocted the Wills at Exs.D1 and D2.

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5.2 It is the contention of learned counsel for plaintiff that since the parents died intestate , neither the Wills were within knowledge of the plaintiff nor he was informed that he is not entitled to 1/3^rd share in 'A' and 'B' schedule properties. It is further contention of learned counsel that the plaintiff got examined the Doctors as PWs.3 and 4, who have treated the plaintiff as well as his mother and opined that they were suffering from mental depression namely, (1) hypothyroidism and (2) depression.

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5.3 It is also further contended by learned counsel for plaintiff that the first Appellate Court has taken into

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consideration all materials placed on record, both oral and documentary and has fairly come to the conclusion that defendant No.1 and the Doctor, who treated the mother having not been examined, the issue of fabricating the Wills is possible and probable. The first Appellate Court has also rightly concluded that the alleged Wills were claimed to have been executed by the parents during the period of their illness. Therefore, the same cannot be accepted, in view of suspicious circumstances. Hence, the first Appellate Court has rightly come to the conclusion that the father of the plaintiff was a cancer patient and the mother of the plaintiff was under severe mental depression and therefore, the parents were not in sound state of mind at the time of execution of the Wills vide Exs.D1 and D2.

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5.4 It is further contended by learned counsel for plaintiff that the defendants have failed to remove the suspicious circumstance surrounding the execution of the Wills by the parents, who were suffering from cancer and severe mental depression respectively. It is further

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contended by learned counsel for plaintiff that the first Appellate Court on analysing all the materials placed on record, both oral and documentary, has rightly come to the conclusion that there is suspicious circumstance surrounding the Wills and so also for the reason that no share has been allotted to the plaintiff, who is admittedly the elder son. Therefore, he sustains the impugned judgment and decree rendered by the first Appellate Court. Hence, there is no requirement of interference at the hands of this Court, so also, no case is made out by the defendants to answer the question of law in their favour.

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5.5 Learned counsel for plaintiff relies upon the

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following judgments:

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i) Rohan Lal Choudhary v. Prem Prakash Gupt reported in AIR 1980 Patna 59;

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ii) Veerasekara Varmarayar v. Amrithavalliammal and Others reported in AIR 1975 Madras 51;

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iii) Dinesh Kumar v. Khazan Singh and Others reported in AIR 1988 Delhi 273;

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iv) Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Others reported in AIR 2007 SC 614;

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v) H.Venkatachala Iyengar v.

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B.N.Thimmajamma and Others reported in AIR 1959 SC 443;

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vi) Paranru Radhakrishnan v. Bharathan reported in AIR 1990 Kerala 146;

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vii) Adivekka and Ors v. Hanumavva Kom Venkatesh (deceased by LRs.) and Anr reported in AIR 2007 SC 2025;

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viii) Apoline D'Souza v. John D'Souza reported in (2007)7 SCC 225 .

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This Court vide order dated 18.07.2023,

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formulated following substantial questions of law for consideration:

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"1. Whether the First Appellate Court justified in decreeing the suit for partition?

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2. Whether the First Appellate Court justified in disbelieving the Will (Ex.D.1 & D2 dated:11.09.1996) and in reversing the Judgment & Decree of the Trial Court?

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3. Whether the First Appellate Court justified in ignoring the evidence of attesting witness DW2?"

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I have heard Sri Dhananjay Kumar, learned counsel for appellants-defendants and Sri Udaya Prakash Muliya, learned counsel for respondent Nos.1(a) and 1(b).

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It is not in dispute that the original plaintiff is the elder brother and the defendants are his younger sister and younger brother. The parents of the plaintiff and the defendants namely, Late B.Seetharama and Late Jalajakshi, during their lifetime, became the owners of suit schedule properties namely, 'A' schedule property by the father through a partition suit in O.S.No.97/1993, which ended up in a compromise decree. Hence, the father of the plaintiff acquired the 'A' schedule property by compromise. Similarly, the mother of the plaintiff became the owner of the 'B' schedule property by virtue of a partition suit and became the absolute owner of the said 'B' schedule property.

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It is also not in dispute that the father of plaintiff

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was working as a Sales Manager of a Pvt. Co.namely, Voltas and he worked across the State and the mother of the plaintiff was working as a Head Mistress in Besent

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Girls' School and she was Senate member of the Mangalore University. It is also not in dispute that these two properties mentioned hereinabove, which is morefully mentioned in Exs.D1 and D2-Wills are pertaining to the properties of the parents of the plaintiff. It is also not in dispute that the father of the plaintiff was suffering from cancer and subsequently, succumbed to the same and the mother was suffering from mental depression and illness. The illness of the parents of the plaintiff has been stated on oath by PW.1 so also by PWs.3 and 4, who are the Doctors and PW.3 had opined that on 02.09.1996, that is almost one week prior to the execution of the Will dated 11.09.1996, the mother of plaintiff was not able speak, lost memory, used to sit lonely and she was thinking of committing suicide.

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It is also seen as per the evidence adduced, the

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father of the plaintiff was bed ridden due to cancer. It is also relevant to note that one Dr.V.K.Bhat was examined through Commissioner as CW.1, who was a Psychiatrist. He treated the mother of the plaintiff at KMC, Mangalore on 23.08.1997, where the mother was admitted for depression suffering from several years. To establish this fact, Ex.P42 was marked by PW.1 which is a case sheet and nature of treatment given to her. It is also seen that as per Ex.P42-the hospital records produced, the mother of the plaintiff was suffering from delusion, hallucination, thought disorder and depression. It is also stated that she was suffering from chronic depression since several years. In the medical records at Exs.P42 and P43, the first Appellate Court had appreciated and analysed the same holding that defendant No.1 (younger sister of the plaintiff) had taken the mother to the hospital, which is clearly evident from the said document.

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It is further relevant to note from the materials

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placed on record that the plaintiff's witnesses have supported the case of the plaintiff. Dr.Shivaram Karikal, who was examined as PW.3, had treated the mother of the plaintiff and defendants and Ex.P42 clearly depicts the illhealth and medical condition of the mother of the plaintiff, Smt.Jalajakshi and that she was taken to the hospital by defendant No.1-her daughter, which is clearly evident from the records as she is the one who accompanied the mother and took her to the hospital for her treatment. It is also not in dispute that the mother of the plaintiff was admitted in the Psychiatry ward of Kasturba Medical College Hospital, Attavar, Mangaluru between 23.08.1997 to 05.09.1997 as she was suffering from depression and nutritional deficiency, so also, Ex.P43 has been appreciated by the first Appellate Court which is the document of PW.3 i.e. a medical prescription, which relates to severe mental depression status of the mother

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of the plaintiff Smt.Jalajakshi, who was taken for

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treatment by the daughter, defendant No.1.

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All these aspects have been clearly considered, analysed and appreciated by the first Appellate Court. Therefore, it came to the conclusion that the father and mother of the plaintiff and defendants were suffering from cancer and severe oldage ailments respectively, which is evident from oral and documentary evidence placed on record. The witnesses PWs.3 and 4 namely, the Doctors, who treated the mother of the plaintiff and defendants and so also, CW.1-Dr.V.K.Bhat were examined. The case papers of the mother of the plaintiff and defendants and also the record of history are concurred with the finding of the severe mental depression and ill-health of the mother of the plaintiff and defendants. The same has not been countered or contradicted by the defendants.

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It is also relevant fact to see that witnesses PWs.3, 4 and CW.1 have clearly stated in the documents

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that the mother of the plaintiff was contemplating to commit suicide and that she was not taken care by the defendants. Under the circumstances, in view of the documents so produced, there is suspicious circumstance in the Wills. When such being the case with regard to the mental depression, delusion, hallucination and severe delirious condition of the mother of the plaintiff and defendants, the suspicious circumstances of execution of the Will arises and the same ought to have to be dispelled by the propounder of the Wills to the satisfaction of the Court.

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It is also relevant to note that the both the Wills are executed on the same date i.e. 11.09.1996, wherein both the father and mother are the attesting witnesses in each of their Wills. The second attesting witness is DW.2, Advocate who is none other than the scribe, who drafted the Wills. Therefore, there is no proper independent attesting witness other than the scribe, who can speak about the Wills in view of the absence of the father and

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mother, who are the first attesting witnesses. The evidence of DW.2 has been considered by the first Appellate Court. However, the evidence so adduced by DW.2 has not been satisfactory as held by the first Appellate Court. There is no cogent and satisfactory evidence adduced by DW.2 with regard to execution, his presence and the documents that were produced for the proof of Wills. Mere production of the Wills will not prove the execution of the Wills in accordance to law. DW.2, states that both the father and mother of the plaintiff and defendants were in sound state of mind while executing the Wills. However, it runs contrary to the medical records produced by the plaintiff and evidence of PWs.3, 4 and CW.1

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It is relevant extract Section 63 of the Indian Succession Act, 1925 which deals with execution of unprivileged Wills, hereinbelow:

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"63. Execution of unprivileged Wills.─Every testator, not being a soldier employed in an

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expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:─

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(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

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(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

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(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall

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not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

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It is also relevant to extract Section 68 of the

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Indian Evidence Act, 1872 hereinbelow, which would be relevant to the case on hand:

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"68. Proof of execution of document required by law to be attested.─If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

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Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

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These aspects have been elaborately discussed by first Appellate Court.

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The Hon'ble Apex Court, in the case of

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Shivakumar and Others vs. Sharanabasappa and

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Others reported in (2021)11 SCC 277 , has held at para12 as under:

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

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

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

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12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

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

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12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the

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

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

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12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of

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the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

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12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

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12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a

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matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will."

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The Hon'ble Apex Court, in the case of Murthy and Others vs. C. Saradambal and Others reported in

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(2022)3 SCC 209 , has held at paras-32 to 37 as under:

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"32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.

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33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009)

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3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696, para 16)

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“16. … (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

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(ii) 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 propounder, and

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(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.”

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34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369],

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this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.

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35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23)

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“23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

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(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

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(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

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(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

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(iv) The dispositions may not appear to be the result of the testator's free will and mind.

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(v) The propounder takes a prominent part in the execution of the will.

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(vi) The testator used to sign blank papers.

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(vii) The will did not see the light of the day for long.

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(viii) Incorrect recitals of essential facts.”

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36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must

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be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.

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37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48)

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“34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:

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(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will:

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(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

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(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.

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35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449] , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.

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36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.

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37. [Ed.: Para 37 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2007 dated 5-12-2007.]. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its

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mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion.”

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Out of the judgments relied upon by learned counsel for respondents-plaintiffs, the judgment of the Hon'ble Apex Court in the case of Apoline D'Souza v. John D'Souza reported in (2007)7 SCC 225 would squarely be applicable to the facts of the present case, wherein paras-11 to 13 and 20 read as under:

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"11. The High Court has arrived at a conclusion that the execution of the will has not been proved in accordance with law.

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12. What should be the mode of execution

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of a will has been laid down in Section 63 of the Succession Act in the following terms:

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"63. Execution of unprivileged wills.─Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:

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(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.

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(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

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(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign of affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a person acknowledgment of

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his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

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13. Section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW 2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. The appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that account she was made a beneficiary thereof. The will was full of suspicious circumstances. PW 2 categorically stated that the will was drafted before her coming to the residence of the

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testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. Thee is no evidence to show that the contents of the will were read over and explained to the testatrix. PW 2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will.

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20. The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case."

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In view of the above position of law, the facts of

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the present case would have to be considered. When there is suspicious circumstance surrounding the Will, it

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becomes all the more obligatory and duty of the person relying upon the Will to substantiate the same and remove the suspicious circumstances surrounding the Will to the satisfaction of the Court by placing cogent, convincing and satisfactory explanation on suspicious circumstances of the Will, which in the present case has not been done by the appellants-defendants, who relied upon the Wills to claim rights over the properties.

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It is also relevant to note that the best person to

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have spoken about the good health and sound state of mind of the father and mother of the plaintiff and defendants would have been defendant No.1-Smt.Shyla Sampath, the daughter, who had taken her mother to the Doctor for treatment and who has strangely not stepped into the witness box to adduce evidence. Unless the cogent material evidence are placed before the Court, both oral and documentary, it becomes difficult to ignore the suspicious circumstance so raised in the Wills. Therefore, the first Appellate Court, having analysed these

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evidentiary value of discrepancy, unusual features and unnatural circumstances in the Wills, has not accepted the Wills to have been executed in sound state of mind and it is also strange that both the Wills have been executed on

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the very same day by the father and mother of the plaintiff and defendants.

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It is also seen that strangely, in the Will executed by the father, B.Seetharama, he has not bequeathed any property to his wife, so also, no proper or cogent believable reasons are stated as to why the plaintiff has been deprived of movable or immovable properties in the said Will. In the normal circumstances, if the head of the family, the father makes a Will, he would generally bequeath some portion of the property to his wife, the mother of the plaintiff and defendants and post her death, the same would devolve in the children, which is not done in the present case. It is also seen that the earlier Will executed by Sri B.Seetharama has not been produced before the Court by the defendants.

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Under the circumstances, the first Appellate Court having considered all these question of facts and law and the judgments relied upon by the parties is quite justifiable in decreeing the suit for partition. The first Appellate Court has appreciated the Wills at Exs.D1 and D2, so also, the evidence adduced by the parties and has rightly come to a conclusion in not accepting the Wills, thereby disbelieving it. The first Appellate Court has also considered the evidence of DW.2, the Advocate and the scribe/the attesting witness, who has stepped into the witness box to speak about the Wills and not being satisfied with the evidence so adduced, it has negatived the evidence of DW.2. Therefore, I do not find any good ground or cogent reason to interfere with the judgment and decree rendered by the first Appellate Court.

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In the present case on hand, undoubtedly, the

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Wills are alleged to be shrouded in suspicion by the plaintiff, for many reasons. When such being the case, it

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becomes the responsibility and duty of the person relying

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upon the Wills to prove to the satisfaction of the Court's conscience by satisfactory and cogent evidence by the propounder of the Wills to establish and prove the Wills in accordance to the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, which has not been done in the present case.

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25. Having deliberated on the substantial questions

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of law raised for consideration by this Court and upon hearing learned counsel for appellants and learned counsel for respondents and in view of the discussions made hereinabove, the questions of law are answered accordingly. Hence, I pass the following:

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ORDER

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i) This Regular Second Appeal is dismissed; ii) The impugned judgment and decree dated 02.08.2016 passed in RA.No.84/2010 by

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