Dismissed¶44

Smt. Mangala v. Sri. B. Siddaiah

Karnataka HC27 Oct 2025RSA/577/2013

Case brief

AI extract

What is this about?

Proof of execution of Will; attesting witnesses unable to identify signatures; adverse inference under S.114(g) Evidence Act for withholding original Will; suspicious circumstances — exclusion of natural heirs, unproved testamentary capacity; mere registration no proof of sanctity (Dhani Ram); S.68 Evidence Act requirement defeats rival Will Ex.D3; intestate succession to Class I heirs under S.8 Hindu Succession Act; RSA dismissed and first appellate reversal of trial decree confirmed. Karnataka HC, Bengaluru, 27.10.2025, Ashok S. Kinagi J.

What did the court decide?

None to the appellants; the judgment and decree dated 21.01.2013 of the first appellate court in R.A.No.232/2011 is confirmed and no order as to costs is made. ¶44

Smt. Mangala Vs Sri. B. Siddaiah — Succession and Inheritance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

None to the appellants; the judgment and decree dated 21.01.2013 of the first appellate court in R.A.No.232/2011 is confirmed and no order as to costs is made.

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Issue for consideration

Whether the lower appellate Court erred in discarding Ex.P5 on raising suspicion by reference to Ex.P15 and P16, and whether the conclusion reached by the trial Court is justified keeping in view the findings of the lower appellate Court. +1 more

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Court's answer

The attesting witnesses PW.2 and PW.3 could not identify the signature of the testator on Ex.P5 nor their own signatures on it, and the defendants seriously disputed the execution of the Will dated 31.01.1997.

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Ratio / Principle

The attesting witnesses did not depose that Parvathappa instructed the scribe to draft the Will or that its contents were read over and explained to him before he affixed his signature on Ex.P5.

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Key takeaways

Due to non-production of the original Will, an adverse inference is drawn against the plaintiffs under Section 114(g) of the Indian Evidence Act, 1872; no foundation was laid for secondary evidence and Ex.P5 stood marked subject to objection.ratio¶30
The Will Ex.P5 is surrounded by suspicious circumstances: no records established the testator's mental condition, and the exclusion of the defendants, his daughters and natural heirs, was unexplained, besides non-production of the original Will.ratio¶31

Detailed headnote1 paragraphs

High Court of Karnataka (Bengaluru), Regular Second Appeal No. 577 of 2013 (DEC), decided 27.10.2025 (Ashok S. Kinagi, J.) — Appeal dismissed; first appellate court's judgment and decree dated 21.01.2013 in R.A.No.232/2011 confirmed; no costs. The plaintiff-appellants claimed title to suit A and B schedule properties out of Survey No.199/1, Nelamangala, under a registered Will dated 31.01.1997 (Ex.P5) executed by V. Parvathappa, while the defendants claimed under an earlier registered Will dated 06.01.1996, registered 24.01.1996 (Ex.D3/D7). The trial court (O.S.No.68/2009, judgment 01.07.2011) decreed the suit declaring the plaintiffs absolute owners; the first appellate court reversed and dismissed the suit. Confirming the reversal, the High Court held: (i) the attesting witnesses PW.2 and PW.3 could not identify the testator's or their own signatures on Ex.P5 and did not depose to the Will being drafted per the testator's instructions and read over to him; (ii) the original Will was withheld, drawing an adverse inference under S.114(g), Evidence Act, with no foundation laid for secondary evidence; (iii) the Will was beset by suspicious circumstances — unproved mental condition of the testator and unexplained exclusion of his daughters, the natural heirs (following Bharpur Singh, AIR 2009 SC 1766, and Meena Pradhan on S.63 formalities and the judicial-conscience test); (iv) mere registration does not prove the sanctity of a Will's contents (Dhani Ram, 2023 SCC OnLine SC 1263); and (v) mere marking of the sub-registrar's books Ex.P15/Ex.P16 does not dispense proof, no expert comparison having been sought. On substantial question No.2, the defendants equally failed to prove Ex.D3 for want of an attesting witness (S.68, Evidence Act) and had filed no counter-claim; with both Wills unproved, the defendants as Class I heirs succeeded under S.8, Hindu Succession Act. Both substantial questions were answered in the negative.

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 577 OF 2013 (DEC)

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BETWEEN:

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SMT. MANGALA WIFE OF RAMACHANDRA BABU @ BABU AGED ABOUT 42 YEARS

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SRI. SHIVAKUMAR SON OF RAMACHANDRA BABU @ BABU AGED ABOUT 20 YEARS

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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BOTH ARE RESIDING AT PARVATHAPPA EXTENSION NATIONAL HIGHWAY BYPASS NELAMANGALA TOWN-562 123.

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…APPELLANTS

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(BY SRI. RAVINDRANATH KAMATH, SENIOR ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE)

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AND:

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SRI. B. SIDDAIAH SON OF LATE DODDANARASAIAH SINCE DEAD BY LRs

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RESPONDENTS No. 2 TO 4 ARE TREATED AS LRs

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SRI. S. VINOD KUMAR SON OF B. SIDDAIAH AGED ABOUT 35 YEARS

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SRI. S. SRINIVAS SON OF B. SIDDAIAH AGED ABOUT 29 YEARS

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SMT. R. NAGAMANI WIFE OF RAMDAS AGED ABOUT 38 YEARS

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ALL ARE RESIDING AT NO.2361 SRI BALAJI NILAYA 16^TH MAIN, INDIRANAGAR BANGALORE - 560 008.

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SMT KALAVATHI WIFE OF MALLANNA SINCE DECEASED BY LRs

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5(A) JAGADEESH .M S/O LATE MALLANNA AGED MAJOR

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5(B) JYOTHI .M D/O LATE MALLANNA AGED MAJOR

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BOTH ARE RESIDING AT NO.748 'MALLIGE', DR. RAJKUMAR ROAD NEAR ST. ANNE HIGH SCHOOL RAJAJINAGAR, 6^TH BLOCK BANGALORE-560 010.

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…RESPONDENTS

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(BY SRI. SHAKER SHETTY .S, ADVOCATE FOR R2 TO R5(A & B); V/O DATED 29.05.2017, R2 TO R4 ARE TREATED AS LRs OF DECEASED R1)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 21.1.2013 PASSED IN R.A.NO.232/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-V, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT

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AND DECREE DATED 01.07.2011 PASSED IN OS.NO.68/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 21.01.2013 passed in R.A.No.232 of 2011 by the learned Additional District and Sessions Judge, Fast Track Court-V, Bangalore Rural District, Bangalore reversing the judgment and decree dated 01.07.2011 passed in O.S.No.68 of 2009 by the learned Senior Civil Judge and JMFC, Nelamangala.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for a relief of declaration and permanent injunction. It is the case of the plaintiffs that, the land bearing Survey No.199/1 measuring 39 guntas with a residential house measuring east-west 45 feet; north-south 35 feet and a foundation laid to an extent of portion measuring east-west 45 feet; north-south 35 feet; situated at Nelamangala, and a portion measuring 10 guntas in Survey No. 199/1 situated at Nelamangala, which are described as suit A schedule and suit B schedule properties. It is contended that the plaintiffs acquired the said property under a registered Will dated 31.01.1997 executed by B. Parvathappa. They have sought a relief to declare that the registered Will dated 24.01.1996 is not enforceable and bad in law. It is contended that land bearing Survey No. 199/1 totally measures 6 acres and 39 guntas and was the ancestral property vested with Erappa. The registered partition deed was effected between the sons of

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Erappa, a portion measuring 1 acre 36 guntas out of the said land fell to the share of V. Parvathappa, who is the elder son among the sons of Erappa. Out of the portion measuring 1 acre 36 guntas, 7 guntas was converted into non-agricultural purpose at the instance of said V. Parvathappa. The said property was gifted in favor of 'Kurubura Sangha Vidyarthi Nilaya', Nelamangala. The remaining portion continued with V. Parvathappa. During the lifetime of V. Parvathappa, he let out a portion which is abutting to the National Highway bye-pass road, in favor of Shobha Dhaba hotel on a rental basis. It is contended that during his lifetime, he was residing along with his brother's son by name Ramachandra Babu, his wife and children i.e., the plaintiff's and the said Ramachandra Babu was foster son to V.Parvathappa, he took care of Ramachandra from the age of 4 years and performed the marriage and they were living together.

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V. Parvathappa executed a registered Will dated 31.01.1997 in favour of the plaintiffs. Thereafter, V. Parvathappa died on 23.08.1999. The last rituals of V. Parvathappa was performed by Ramchandra Babu through his son Shivakumar, i.e., plaintiff No. 2. The plaintiffs who are in physical possession and enjoyment of the suit schedule property, continued to be in possession and enjoyment of the same. Subsequent to the death of V. Parvathamma, the defendants started to claim a title over the suit schedule property on the guise of being registered Will dated 24.01.1996 alleged to have been executed by V. Parvathappa, registered in the office of SubRegistrar, Indiranagar, Bengaluru which is alleged to be the first Will and based on the said Will the mutation entry was effected in their names although law does not permit to have mutation accepted based on the said Will. It is contended that the defendants tried to dispossess the plaintiffs from the suit

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schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration of title and a permanent injunction. Accordingly, prays to decree the suit.

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Defendants filed a written statement admitting that V.Parvathappa was the owner of the land bearing Survey No. 199/1 measuring to an extent of 1 acre 36 guntas, out of which 7 guntas was gifted to 'Kurubura Sangha Vidyarthi Nilaya'. During the lifetime of Parvathappa, he had authorized them to manage the property, and the property abutting to the National Highway bye-pass was let out in favour of Shobha Dhaba. The RCC building measuring 45x35 feet abutting the said hotel was constructed by them and the same was occupied by V. Parvathappa. They have been continuously visiting her father and was in constant vigil of his health and care. It is contended that the identity, measurement and schedule furnished in the plaint is incorrect. It is denied that

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the Parvathappa handed over the original Will dated 31.01.1997 to plaintiff No. 1. It is contended that the plaintiffs have not acquired any right, title or interest over the suit schedule property by an alleged Will dated 31.01.1997. The alleged Will is fabricated document. V. Parvathappa had executed a Will dated 06.01.1996 which was registered on 24.01.1996. After the demise of V. Parvathappa, the property was transferred in the name of the defendants. Hence, the plaintiffs are not the owners and in possession of the suit schedule property. A cause of action shown in the plaint is false and imaginary. Hence prays to dismiss the suit.

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The trial Court, based on the rival pleadings of the parties, framed the following issues:

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Whether plaintiffs prove that late Parvathappa, out of love and affection, voluntarily executed registered Will in favour of plaintiffs on 31.01.1997?

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Whether plaintiffs prove that they came in possession of suit properties after death of Parvathappa?

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Whether, plaintiffs further prove that defendants are trying to interfere in their possession and enjoyment of the suit properties?

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Whether the plaintiffs are entitled for relief sought?

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What decree or order?

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The plaintiffs to prove their case, plaintiff No. 1 was examined as PW.1, examined three witnesses as PW.2 to PW.4 and marked 16 documents as Exs.P1 to P16. Conversely, the power of attorney holder of the defendants was examined as DW.1 and marked seven documents as Exs.D1 to Ex.D7. The trial court after recording the evidence of the parties, hearing both sides, and on assessing the verbal and documentary evidence, answered issue Nos. 1 to 4 in the affirmative, issue No. 5 as per the final order, and the suit of the plaintiffs was decreed vide judgment dated 01.07.2011, and it was declared that the plaintiffs are

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the absolute owners of the suit schedule property by a Will dated 31.01.1997. Consequently the defendants are restrained from interfering with the suit schedule property of the plaintiffs.

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Defendant No.1, aggrieved by the judgment and decree passed in O.S No.68 of 2009 preferred an appeal in R.A.No.232 of 2011 on the file of II Additional District Sessions Judge, Fast Track Court-V, Bangalore Rural District.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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Whether the appellant proves that the judgment and decree passed by the trial Court is perverse, arbitrary and this Court interference is necessary?

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What order?

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The First appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order. The

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appeal was allowed. The judgment and decree passed in O.S No.68 of 2009 dated 01.07.2011 was set aside and consequently the suit of the plaintiffs was dismissed vide judgment dated 21.01.2013.

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The plaintiffs, aggrieved by the judgment and decree passed in R.A.No.232 of 2011, filed this Regular Second Appeal.

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Heard the arguments of the learned senior counsel Sri. Ravindranath Kamath, appearing for the plaintiffs and the learned counsel for the defendants.

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Learned Senior counsel for the plaintiffs submits that the First Appellate Court has not adequately re-appreciated the entire evidence on record. He also submits that the plaintiffs have proved the execution of a Will, by examining the attesting witnesses as required under Section 68 of the Indian Evidence Act, 1872. He also submits that the defendants have not stepped into the witness box, and the defendants have been examined through the power of attorney

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holder. The power of attorney holder did not have a personal knowledge about the case.

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To buttress his arguments, he has placed a reliance on the judgment of the Hon'ble Apex Court in the case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd and others¹ . He also submits that the first appellate court committed an error in ignoring the evidence of PWs.1 to PW.3 and blindly rejected the evidence of PW.1 to PW.3. The evidence of PW.1 to PW.3 is corroborated with the documents marked as Ex.P1 to Ex.P15. He submits that V. Parvathappa during his lifetime executed a Will bequeathing the suit schedule property in favor of Ramachandra Babu. By a registered Will dated 31.01.1997, the plaintiffs became the absolute owners of the suit schedule property. The first appellate court committed an error in reversing the judgment and decree passed by the trial Court. The impugned judgment passed by the

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1 AIR 2005 SC 439

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first appellate court is arbitrary, erroneous and perverse. Hence, on these grounds, he prays to allow the appeal.

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Learned counsel for the defendants submits that the first appellate court after re-appreciating the entire evidence on record has rightly held that the plaintiffs have failed to prove the execution of alleged Will alleged to have been executed by the testator i.e., Parvathappa in favour of Ramachandra Babu on 31.01.1997. He also submits that the evidence of PW.2 and PW.3 do not corroborate the case of the plaintiffs, and he submits that the plaintiffs did not explain under what circumstances the property was given to others i.e., other than his own daughters. He submits that the Will is surrounded by suspicious circumstances. The First appellate court has rightly passed an impugned judgment. The impugned judgment passed by the first appellate Court is just and proper, and do not call for any interference at the

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hands of this Court. Hence, on these grounds, he

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prays to dismiss the appeal.

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This Court vide order dated 30.3.2015 admitted the appeal to consider the following substantial questions of law.

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1) Whether the lower appellate Court has committed an error in discarding the document at Ex.P5 on raising suspicion by referring to the documents at Ex.P15 and P16. In that light, whether the conclusion reached by the trial Court is justified, if the findings rendered by the lower Appellate Court is kept in view?

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2) Whether in the light of the document at Ex.D3, the trial Court was justified in relying on the document at Ex.P5?

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Reg. substantial question of law No.1:

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The plaintiffs to substantiate their case, plaintiff No.1

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was examined herself as PW1. She deposed that Plaintiff No.2 is her son, and the suit land bearing Survey No.199/1 measures 6 acres 39 guntas

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situated at Nelamangala, Kasaba hobli, Nelamangala, which was the ancestral property of Erappa. A Registered partition deed effected between the sons of Erappa, a portion of land measuring 1 acre 36 guntas fell to the share of V. Parvathappa, who is the elder son among the sons of the said Erappa. The said partition was reduced into writing and same was registered on 22.05.1970. Out of 1 acre 36 guntas, 7 guntas of the said land was given to 'Kurubara Sangha Vidyarthi Nilaya' by a gift. Parvathappa continued in possession of portion of land bearing Survey No. 199/1 measuring 1 acre 29 guntas. Parvathappa had two daughters, namely the defendants. Their marriage was performed, and they are residing along with their husbands. Ramachandra Babu i.e., brothers' son and his wife were taking care of Parvathappa, and he out of love and affection bequeathed the suit schedule property in favour of plaintiffs by a registered Will dated 31.01.1997 and

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the said Parvathappa passed away. After his death, the plaintiffs came in possession of the suit schedule property and they became the absolute owners of the suit schedule property based on a registered Will dated 31.01.1997. The defendants created the registered Will dated 24.01.1996 and got transferred the property in the name of the defendants colluding with the revenue officials. The defendants have no right, title or interest over the suit schedule property. The plaintiffs, to substantiate their case, produced the documents Ex.P1 is the affidavit of PW.1 i.e., Mangala - plaintiff No. 1. Ex.P2 is the mutation register which discloses the execution of a Will dated 24.01.1996. Based on the registered Will dated 24.01.1996, the property was transferred in the name of the defendants. Ex.P3 is the record of rights of suit schedule property which discloses that the defendant is the owner, and in possession of the suit schedule property. Ex.P4 is the death certificate which discloses

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that Parvathappa died on 23.08.1999. Ex.P5 is a certified copy of the Will dated 31.01.1997 alleged to have been executed by Parvathappa, Ex.P6 is the Affidavit of PW.2, Ex.P7 is the affidavit of PW.3. Ex.P8 is the election identity card of V. Parvathappa, Ex.P9 is the death ceremony card of V. Parvathappa. Ex.P10 is the ration card of V. Parvatappa's family. Exs.P11 to P14 are the photographs. Ex.P15 is the subregister's document book. Ex.P16 is the registration book of sub-register Nelamangala.

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During the cross examination of PW.1, it is stated that the defendant No.1's father's name is Parvathappa and his father's name is Erappa. A partition was effected between Erappa and his sons and he has seen the partition document, and it is stated that they do not know on what date it was written. She has original partition deed. He had stated that he has instructed his counsel before filing the suit. She has deposed that Ramachandra Babu is also the son of

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Parvathappa. She admits that Parvathappa was not in cordial relationship with the defendants. It is denied that he is giving a false evidence regarding the relationship between the Parvathappa and the defendants that they were not in good terms. It is denied that the defendant No.1 was taking care of Parvathappa during his lifetime. It is also denied that neither PW.1 nor Ramachandra Babu ever took the care of Parvathappa. It is stated that she is cultivating

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the land belonging to Parvathappa. She has denied that she has created Ex.P5 after coming to know about the executing of a Will by Parvathappa in favour of defendant No.1. She admitted that after the demise of Parvathappa, the khata was transferred in the name of defendant No.1.

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The plaintiffs examined D.C. Chikka Gangappa as PW.2. He deposed that he is the permanent resident of Jakkasandra Village, Nelamangala, Bangalore Rural District and he knows the plaintiffs and the

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defendants that land bearing Survey No. 199/1 totally measures 6 acres 39 guntas and it was the ancestral property of one Erappa. There was a partition effected between the sons of Erappa. A portion of land measuring 1 acre 36 guntas fell to the share of V. Parvathappa, who is the elder son among the sons of the said Erappa. The said V. Parvathappa acquired the absolute right by way of a partition deed effected between him and his siblings on 22.05.1970. V. Parvathappa during his lifetime bequeathed the suit schedule property in favour of Ramchandra Babu on 31.01.1997 and he is signatory to the said Will as an attesting witness. He has stated that the entire land measuring 1 acre 29 guntas was divided into 4 divisions, out of which, A schedule property was bequeathed in favour of plaintiff No.1 and the said portion is fully described in the suit schedule. Also, 'B' schedule property was bequeathed in favour of Plaintiff No.2, similarly C and D schedule properties

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have been bequeathed in favour of defendant No.1 and defendant No.2 and the Will executed by V. Parvathappa on 31.01.1997 was his last Will. During his lifetime, he himself has handed over the original Will dated 31.01.1997 to plaintiff No. 1 and

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she has the custody of the original document and after the demise of V. Parvathappa on 23.08.1999, the plaintiffs have acquired the absolute right, title, and interest over the suit properties and they are in joint possession of the suit schedule properties which are bequeathed in their favour.

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In the cross-examination, he deposed that he is living in Jakkasandara since birth, and Survey No. 199/1 measuring 7 acres which was given to Erappa. He deposed that he has not seen any document as to how the land was acquired by Erappa and he has not seen any document about the division of lands and he admits that he was not present when partition was effected between the Parvathappa and his siblings.

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and he do not know the measurement of Survey No. 199 which was converted for non-agricultural purpose and he has not seen the order of conversion and he admits that he has seen the gift deed executed in 1979 wherein the small portion was gifted in favour of Kurbara Sangha i.e., measuring 7 guntas and he is the representative of 'Kurubara Sangha' and he has seen the gift deed executed in 1979. He deposed that he has not seen records regarding Parvathappa giving 1 acre 29 guntas of land on lease. Ramachandra Babu's father's name is Nanjappa. Ramachandra Babu does not own any land. As his father, i.e., Nanjappa was deceased. The said Nanjappa is Parvathappa's younger brother. Parvathappa has two daughters. They are the the defendants and there was no enemity between Parvathappa and his two daughters and their relationship was cordial. He denies that Parvathappa's eyesight was poor in 1996.

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He further deposed that Parvathappa, Bylappa and PW.2 brought the stamp paper to register office at Nelamangala to write the Will and he had purchased, the stamp paper on the day when the Will was registered. He does not remember how many stamp papers they have purchased, and he does not remember the name of the stamp vendor who sold the stamp papers. And he does not remember the name of the typist who typed the Will, and he states that Parvathappa himself gave instruction to the typist to draft the Will. Parvathappa requested him to come to his house between 08.30 and 09.00 in the morning. He was unable to say at what time he brought the stamp paper. He further stated that it was around 11.00 to 11.30 a.m. in the morning the Will was typed. It is denied that the Parvathappa did not execute the Will as alleged by him. He has stated that Parvathappa might have studied up to SSLC. He denied that himself and Ramachandra Babu created

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the Will so that his daughters should not get the property after the demise of Parvathappa. He does not know as to when the original copy was obtained after the Will was registered. He has stated that he has not informed the defendants about the execution of a Will by Parvathappa in favour of Ramachandra Babu.

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The plaintiffs also examined one Bylappa as PW.3, who deposed in the same lines of PW.2, and he stated that he is also a attesting witness to Ex.P5. In the cross examination, it is stated that he is the resident of Dodipalya since his birth. The suit property is about 1 k.m. away from his residence and today Ramachandra Babu is in the court and he is the husband of plaintiff No.1 and he i.e., Bylappa has given an information in his examination-in-chief. During the examination-in-chief, he has stated that the said Erappa had 6 acres of land. There is a division between Erappa and his children and we do

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not know whether there is a record about it or not. The said land was converted into non-agricultural use and he cannot say the extent of conversion. He does not know whether the land was gifted or leased in the suit land and he does not remember how many days before the Will, a stamp paper was purchased and he admits that Parvathappa had two daughters. Parvathappa and his children were in cordial relation. He denied that Parvathappa did not execute a Will in his presence and he did not affix his signature. He denies that Ramachandra Babu created the Will so that Parvathappa's children would not get the property and he does not remember the date on which date the Will was registered.

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The plaintiffs examined the sub-register as PW.4, who has deposed that he was summoned by the court to produce a thumb impression as well as signature book of the documents. The said thumb impression and signature book is marked as Ex.P15 and one

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Parvathappa had affixed his thumb impression and signature which are marked as Ex.P15(a) and (b) and the registration book is marked as Ex.P16. The said Will was registered on 18.06.1998 pertaining to the document No.26/1998-99 and the said instrument was the Will executed by V. Parvathappa. The said instrument was executed in the presence of subregistrar. During the cross-examination, he admits that Ex.P15 was executed in 1997, and he did not work as a sub-register at Nelamangala at that point of time, and he has not seen the executant.

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In rebuttal, the power of attorney holder of defendant No. 1 was examined as DW.1 by name B. Siddaiah. He has deposed that his father-in-law Mr. Parvathappa was the absolute owner of the property bearing Survey No. 199/1 situated at Nelamangala town measuring 6 acres 39 guntas, and out of the said land, a portion measuring 1 acre 29 guntas was in his use, occupation and enjoyment. He had a close

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relationship with defendant No.1 and used to continuously visit their house and reside with them for a substantial period of time, and Ramachandra Babu was not attending to maintain his father-in-law and nor he was adopted by his father-in-law. He has deposed that father-in-law executed a registered Will on 06.01.1996 bequeathing the extent of 1 acre 29 guntas in Survey No.199/1 in favour of the defendants and other legacies. As per the terms of Will the title has passed on to the legatees, and they accordingly mutated their names in the revenue records regarding the said property. After having the knowledge of the said Will the plaintiff with an intention to defeat the legitimate right of the legal heirs of parvathappa created a Will dated 31.01.1997 and the father of defendant Nos.1 and 2 passed away on 23.08.1997 and after his demise, the legatees became the absolute owners of the property in terms of the Will, and the plaintiff had filed this suit without

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disclosing the existence of the Will executed by the defendant's father in favour of the defendant and others and he has denied that the executant has executed any Will as claimed by the plaintiff in the plaint.

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The defendant, to prove the defence marked the documents Ex.D1 is the affidavit of DW.1, Ex.D2 is the power of attorney wherein defendant No.1 had authorized DW.1 to depose on behalf of her, and DW.1 is the husband of defendant No.1. Ex.D3 is a certified copy of the Will dated 06.01.1996 which discloses that the father of the defendants executed a Will bequeathing the suit schedule property in favour of the defendants. Ex.D4 is a certified copy of the mutation register extract which discloses that after the demise of Parvathappa, the defendants submitted an application to enter their names in the revenue records based on the registered Will executed by Parvathappa in favour of the defendants. Ex.D5 is the

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RTC extract of suit property which discloses that the defendants are the owners and in possession of the suit schedule property. Ex.D6 is the tax paid receipt. Ex.D7 is a certified copy of the Will dated 06.01.1996.

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During the cross-examination of DW.1, he stated that his wife is unemployed and she is in a good health and has no problem in coming to the court to depose. It is elicited that DW.1 married about 35 years ago and previously worked in Indian Airlines and retired as a traffic Superintendent, and his wife’s father, V. Parvathappa was a Health Inspector in the Corporation, and he was originally from Nelamangala. He lived in Nelamangala till 1994, and then moved to his daughter’s house in Indiranagar. Parvathappa had a house on land bearing Survey No.199 in Nelamangala. At the time of Parvathappa's death, he was in his daughter's house, he died in his daughter's house.

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From the perusal of the entire evidence placed on record by the parties, PW.2 and PW.3, who are said to be the attesting witnesses to the registered Will executed by Parvathappa in favour of the plaintiffs. They could not identify the signature of the testator on Ex.P5, and they also could not identify their signature on the Ex.P5. The defendants have seriously disputed the execution of a Will alleged to have executed by V. Parvathappa in favour of the plaintiffs on 31.01.1997. Further, the plaintiffs have not produced the original Will. The plaintiffs have produced a certified copy of a Will marked as Ex.P5 and the same was marked subject to objection.

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(Emphasis supplied)

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As observed above, the defendants have seriously disputed the execution of a Will by Parvathappa in favour of the plaintiffs. If the plaintiffs have produced the original Will, the same could have been referred to the experts to assert the signature of Parvathappa on

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Ex.P5. To prove the execution of a Will, the witnesses have to depose that the testator has given instruction to draft the Will, after drafting the Will the contents of the Will was read over and explained to the testator and testator after having understood the contents of the Will, affixed signature/thumb impression.

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From the perusal of the evidence of PW.2 and PW.3, they have not deposed that the Parvathappa had instructed the scribe to draft the Will and the contents of the Will was read over and explained to the v Parvathappa, and Parvathappa after having understood the contents of the Will affixed his signature on Ex.P5. Further, due to the non production of original will, an adverse inference has to be drawn against the plaintiffs under Section 114(g) of the Indian evidence Act, 1872. Further, the plaintiffs have also not laid any foundation for leading a secondary evidence. Ex.P5 was marked subject to objection. The burden is on the plaintiffs to establish

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that V. Parvathappa had executed a Will bequeathing the suit schedule property in favour of the plaintiffs.

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From the perusal of the records, it clearly discloses that the Will is surrounded by suspicious circumstances: 1) the plaintiffs have not produced any records to establish the mental condition of the testator. ii) The defendants are the daughters of V. Parvathappa. Why V.Parvathappa excluded the defendants i.e., natural heirs in giving a property to them, and further, the plaintiffs have not produced the original Will.

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To consider the case on hand, I would like to place reliance on the judgment of the Hon'ble Apex Court in the case of Bharpur singh and others v/s Shamsher singh² wherein, the Hon'ble Apex Court held that:

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17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

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2 AIR 2009 SC 1766

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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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The Supreme Court in the case of Meena Pradhan &

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others Vs Kamla Pradhan & another³ in held that "A

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Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say,

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the testator shall sign or affix his mark to the will or it

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3 Civil Appeal No. 3351/2014

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shall be signed by some other person in his presence

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and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will and it is mandatory to get it attested by two or more witnesses and the attesting witnesses must have seen the testator's 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, the attesting witness shall sign the will in the presence of the testator and the attesting witness should speak not only about the testator's signature, but also that each of the witnesses had signed on the will in the presence of the testator. Further, held that the test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider the factors such as awareness of the testator as to the content as well as the consequences, nature and

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effect of dispositions in the will; sound, certain and disposing state of mind, and memory of the testator at the time of execution; Testator executed the will while acting on his own free will."

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Admittedly in the instant case, the plaintiffs have not led any evidence to prove the state of mind of the testator, at the time of execution of alleged Will. It is the duty of the propounder to dispel such a suspicious circumstances by giving a cogent and convincing explanation. As observed above, the plaintiffs have failed to produce the original alleged registered will alleged to have been executed by V. Parvathappa in favour of the plaintiffs.

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Learned Senior counsel for the plaintiffs submits that V. Parvathappa executed the registered Will, and there is a presumption regarding the execution. I would like to place a reliance on the judgment of the Hon'ble Apex Court in the case of Dhani Ram (died)

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through LRs. and others Vs. Shiv Singh⁴ , wherein

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the Hon'ble Apex Court held "Mere registration of a will does not prove the sanctity of the contents of the will".

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Admittedly, the Will was marked subject to objections. The First appellate Court, considering the entire evidence on record has rightly recorded its finding that the plaintiffs have failed to prove the execution of a Will alleged to have been executed by Parvathappa in favour of Plaintiffs bequeathing the suit schedule property, and also held that the plaintiffs have not explained the reason for exclusion of his daughters who are the natural heirs of Parvathappa without any reason. The first Appellate Court recorded in its finding that the Will produced by the plaintiffs marked as Ex.P5 is surrounded by the suspicious circumstances, and has rightly passed the impugned judgment. I do not find any error in the impugned

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4 2023 SCC online Sc 1263

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judgment and the first appellate court has rightly disbelieved the execution of Ex.P5. The plaintiffs examined the sub-register as PW.4 who has produced Ex.P15 and Ex.P16. The defendants have seriously disputed the signature of Parvathappa on Ex.P5 and

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the plaintiffs have not taken any steps to prove Ex.P15 and Ex.P16 i.e., the thumb impression and signature of V. Parvathappa by referring the said documents to the handwriting expert for comparison of disputed signature with that of admitted signature. The heavy burden lies on the plaintiffs to prove the execution of a Will i.e. Ex.P5 which was marked subject to objection.

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The plaintiffs have utterly failed to discharge the burden of proving the execution of a will by V. Parvathappa in favour of the plaintiffs. The first appellate court has rightly come to a conclusion. It is settled law that mere marking of Ex.P15 and Ex.P16 does not dispense its proof. The plaintiffs could have

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taken steps to refer Ex. P15 and Ex.P16 to the experts to compare the signature and thumb impression of V. Parvathappa on Ex.P15 and Ex.P16. Admittedly, the plaintiffs have not taken any steps to refer Ex.P15 and Ex.P16 to the experts.

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The first appellate Court, considering the entire facts has rightly passed impugned judgment. The first appellate court has not committed any error in discarding Ex.P5 as the said document was marked subject to objection, and considered the exposition of law laid down by the Hon'ble Apex Court in the case of Bharpur singh (referred to supra) has rightly come to conclusion.

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In view of the above discussion, I answer the substantial question No.1 in the negative.

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Reg. substantial question of law No. 2:

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The defendants have contended that the father, V. Parvathappa, executed a Will bequeathing the suit

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schedule property in favour of the defendants and produced Ex.D3 i.e., a certified copy of the registered Will executed by V. Parvathappa. The defendants have failed to prove the execution of a Will as the defendants have not examined any attesting witness to Ex.D3 as required under Section 68 of the Indian Evidence Act, 1872.

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Admittedly, the plaintiffs have filed a suit for a declaration of title and a permanent injunction. The heavy burden is on the plaintiffs to prove the execution of a Will, alleged to have been executed by V. Parvathappa in favour of the plaintiffs. The defendants have not sought any counter claim for declaration of title based on Ex. D3.

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Admittedly, the defendants are the daughters of V. Parvathappa and as per Section 8 of the Hindu Succession Act, if a Hindu male dies intestate the property devolves upon the legal heirs. Admittedly, the defendants are class 1 heirs, and they have

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succeeded to the suit schedule property by Section 8 of the Hindu Succession Act.

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As observed above, the defendants have failed to prove the execution of Ex.D3 and the trial court has rightly discarded Ex.D3. The trial Court could have discarded both Ex.D3 and Ex.P5, however the trial Court placed a reliance on Ex.P5, which was marked subject to objection and decreed the suit. Thus, the trial Court has committed an error in decreeing the suit of the plaintiffs based on Ex.P5 In view of the above discussion, I answer substantial question No.2 in the negative.

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