IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06 TH DAY OF FEBRUARY 2015 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06 TH DAY OF FEBRUARY 2015 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY BETWEEN: REGULAR FIRST APPEAL No.1316 OF 2011 Smt. M. Narayanamma, Wife of G. Hanumanthappa, Aged 69 years, Landlord, Hindu, Residing at Chikka Basavanapura, Virgonagar Post, K.R.Puram Hobli, Bangalore (By Shri. M.S. Varadarajan, Advocate) AND: 1. Smt. Lakshmidevi, Wife of Gopal, Aged about 41 years, Resident of Door No.2, Chikka Basavanapura, Virgonagar Post, K.R.Puram Hobli, Bangalore APPELLANT

2 2 2. Sri. Shivananda, Son of G. Hanumanthappa, Aged 46 years, 3. Sri. Vivekananda, Son of G. Hanumanthappa, Aged 43 years, Respondents 2 and 3 are Residing at Chikka Basavanapura, Virgonagar Post, K.R.Puram Hobli, Bangalore C. Krishnareddy, Son of Late C. Obala Reddy, Major, Resident of Om Sudarshan Nilaya, 4 th Cross, College Road, K.R.Pura, New Extension, Bangalore Sri. D.K.Devendra, Son of D.K.Krishnappa, Aged 42 years, Resident of 265, Ahaya Nivas, Devasandra, K.R.Puram, Bangalore RESPONDENTS (By Shri. Amit Deshpande, Advocate for Respondent No.1 Respondent nos. 2, 3 and 5 are served Vide order dated service of notice to respondent no.4 is dispensed with)

3 3 This Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated passed in O.S.No.4071/2002 on the file of the XVIII Additional City Civil Judge, Bangalore (CCH 10), decreeing the suit for partition and mesne profits, decreeing the suit for partition against the defendants 1 to 3 therein and dismissing the suit against the defendant nos.4 and 5. This Regular First Appeal having been heard and reserved on and coming on for pronouncement of Judgment this day, the Court delivered the following:- J U D G M E N T This appeal is filed by the defendants in the suit. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The plaintiff is said to be the daughter of the first defendant. Defendants 2 and 3 are said to be the brothers of the plaintiff. The plaintiff s grand-father, T.N.Mariswamy, is said to have died in the year 1947, in a police firing incident, when a curfew was imposed to quell the several freedom fighters, of whom Mariswamy was said to be one, agitating for the

4 4 independence of India from British Rule. It transpires that the then Government had ordered grant of land to the legal heirs of Mariswamy in recognition of his sacrifice. And it transpires 14 acres and 9 guntas of land were said to have been granted in favour of Lakshmamma, the widow of Mariswamy the grand mother of the plaintiff, in land bearing survey no. 26/2 and 26/3 of Basavanpura village, Krishnaraja puram hobli, Bangalore South Taluk (Now Bangalore East Taluk), which was more fully described in the Schedule to the plaint and referred to as the suit property. Lakshmamma was said to have been possession of the lands along with the defendants and the plaintiff, till her death on It is stated that Lakshmamma had executed a Will, dated , which was duly registered, bequeathing the suit property in favour of the plaintiff and the defendants 1 to 3. It was claimed that the parties were jointly in possession of the property and there was no division by metes and bounds after the death of Lakshmamma.

5 5 It was alleged that the first defendant who was under the influence of defendants 2 and 3, was intent on disposing of the said lands at their instance, to the exclusion of the plaintiff and thereby deprive her of her legitimate share. The khatha in respect of the suit property was said to be in the name of the first defendant as the eldest member of the family. It is alleged that when the plaintiff broached the subject of partition, with the said defendants, they are said to have reacted violently. It was the plaintiff s say that she was denied any right whatsoever in the suit property, on the ground that she was married and could no longer claim any right in the suit property. It is in that background that the plaintiff is said to have filed the suit. The plaintiff had claimed one fourth share in the suit property and for a division by metes and bounds and to be put in possession of her share. She had also claimed mesne profits. It is stated that the trial court had granted an order of temporary injunction, dated , restraining the defendants 1 to 3 from alienating the suit property. Notwithstanding the said

6 6 order of injunction, the defendants 1 to 3 are said to have executed a sale deed dated , in favour of defendant no.4 in respect of a portion of the suit property. It was further stated that the said defendants 1 to 3 had also executed two sale deeds, both dated in favour of one L.Ramesh Kumar and one Manjunath V.A. And that, even before filing of the suit, the defendant had executed a sale deed in favour of defendant no.4, in respect of a portion of the suit property on It was hence contended that the said sale deeds were not only in deprivation of the plaintiff s legitimate share in the suit property but blatantly in violation of the order of injunction operating against the defendants. The first defendant had filed written statement to deny the plaint averments. In that the joint possession of the suit property as claimed by the plaintiff was denied, so also was the will of Lakshmamma on the ground that as she was the only daughter of Lakshmamma, she would have succeeded to the property in the usual course and hence any will was unnecessary and superfluous.

7 7 Defendant no.5 had filed written statement denying the plaint averments and claiming that he has been impleaded as an after thought. It was contended that he had purchased the portion of the suit property under a registered sale deed dated It was further contended that having regard to the main prayer in the suit, there is no relief claimed against defendant no.5 and hence the suit be dismissed against him. On the basis of the above pleadings, the trial court had framed the following issues. 1. Whether the plaintiff proves that her grand mother executed a Will on bequeathing the suit schedule property in favour of the parties herein? 2. Whether the plaintiff proves that she is entitled for 1/4 th share in the suit schedule property and separate possession of the same by metes and bounds? 3. Whether the plaintiff proves that she entitled to enquiry for mesne profits? 4. To what reliefs are the parties entitled to?

8 8 All the issues have been answered in the affirmative. The suit has been decreed as prayed for. 4. The emphasis in the present appeal is on the primary ground that the court below has proceeded on the erroneous presumption that the defendant no.1 has not denied the execution of the will by her mother, bequeathing the suit property in favour of defendant no.1 and her children, including the plaintiff. Secondly, that the will in question was not proved in accordance with law, even if it could be accepted as having been executed by Lakshmamma. And that the suit ought to be dismissed on this ground alone without reference to any other circumstance, as the trial court had failed to appreciate that in the face of Section 68 of the Evidence Act, 1872 and with respect to wills, Section 90 of the Act cannot be invoked. That the trial court was not justified in drawing an adverse inference against the defendant no.1 for not having tendered evidence. As the sole basis of the Plaintiff s claim was the alleged will, which has not been proved in accordance with law. Hence

9 9 there was no necessity to tender any evidence on the part of the defendant. Reliance is placed on the decision of the apex court in the case of Bharpur Singh v. Shamsher Singh, AIR 2009 SC Incidentally, the appellant has filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the CPC, for brevity), seeking to amend the written statement of Defendant no.1 to plead an entirely new set of facts and circumstances, which is dealt with hereunder. Further, the appellants have also filed an application under Order XLI Rule 27, CPC, seeking to produce additional evidence, the said application is also considered hereunder. 5. On the other hand, the learned counsel for respondent no.1 seeks to justify the judgment of the trial court and would vehemently oppose the above said applications filed in this appeal, and places reliance on several authorities. 6. After having heard the learned counsel for the parties at length, a question of law that arises for consideration is as to whether a will which is more than 30 years old could be accepted

10 10 as proved, invoking Section 90 of the Evidence Act, 1872, notwithstanding the rule of evidence contained in Section 68 of the said Act, as regards the need to examine an attesting witness in proof of execution of a will. The suit had been filed on , the plaintiff had produced the original registered will of Lakshmamma, her grand mother, dated and the same was marked as Exhibit P2, in the course of her examination in-chief, by way of evidence, tendered on The plaintiff in her evidence had indicated that, of the two attesting witnesses, one was dead and the whereabouts of another were not known to her. She had, however, made attempts to trace him but was not able to. The plaintiff was cross-examined and it was suggested that the will was a got up document. Defendant no. 1 had not chosen to tender evidence. 7. In the above circumstances, in considering whether the will has been proved in accordance with law, we may refer to the relevant provisions of law and the case law on the subject.

11 11 The relevant provisions of law are extracted hereunder for ready reference. Section 63(c) of the Indian Succession Act, (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 not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of the Indian Evidence Act, 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: [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.]

12 12 Section 90 of the Indian Evidence Act, Presumption as to documents thirty years old. where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.- Documents are said to be improper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. Section 114 of the Indian Evidence Act, Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The following cases are referred to in chronological order to address the nuances that come into play, dependant on the particular circumstances surrounding a will and to appreciate the

13 13 context in which a strict compliance with the rigour of the law is imperative. i) Munnalal, minor and others, vs. Kashibai and others, AIR (34) 1947 Privy Council 15, The sub-ordinate judge in deciding whether a disputed will was proved held that though a presumption under Section 90 of the Evidence Act could be drawn that the will had been properly executed and attested, it was held, that it could not under that Section, presume that the testator, when he made his will, was of sound disposing mind. It was held that the will was not proved. In appeal, the High Court had held that the presumption which could be drawn under Section 90 extended to testamentary capacity and held the will proved. The Privy Council, while confirming the view of the High Court, held thus : A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator s mind, proof

14 14 that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. ii) H. Venkatachala Iyengar vs. B.N.Thimmajamma and others, AIR 1959 SC 443 A three judge bench of the apex court has provided the following guidelines in the matter of proof of wills : 18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably

15 15 refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind " in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to

16 16 the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters. (emphasis supplied ) 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or

17 17 not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document-propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the

18 18 signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such please may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. (emphasis supplied ) 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills

19 19 propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for

20 20 probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895: (AIR 1946 PC 156) "where a will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. (emphasis supplied)

21 21 iii) Shashikumar Banerjee and others vs. Subodh Kumar Banerjee, AIR 1964 SC 529 While referring to H. Venkatachala Iyengar, supra, a Constitution Bench of the apex court has held thus : 4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (Supp.1) SCR 426: AIR 1959 SC 443 and Rani Purnima Devi v. Khagendra Narayan Dev, 1962(3) SCR 195: 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the

22 22 conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested. (emphasis supplied) Iv) Kalidindi Venkata Subbaraju and others vs. Chintalapati Subbaraju and others, AIR 1968 SC 947 The apex court, while considering whether the presumption under Section 90 would arise in respect of a certified copy of a will and not the original, held thus :

23 23 5. As aforesaid, the respondents did not produce the original will but produced only its certified copy, Ex. B.9, which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement. The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will. Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants' custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Dalapati Venkatapathi Raju, D.W. 4. But the appellants' contention as regards D.W.4 was that he was not the same person who attested the will. The High Court appears to have relied upon s. 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt. Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Bassant Singh v. Brij Rai Saran Singh, 67 Ind App (AIR 1935 PC 132) where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years

24 24 old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old" in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, 1956 SCR 1 at p.9 = (AIR 1956 SC 305 at p.309). The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will. V) Madhukar D. Shende vs. Tarabai Aba Shedage, (2002)2 SCC 85. The apex court has expounded thus as regards the proof of execution and attestation of a will thus : 8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the

25 25 Indian Evidence Act, If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge, (1838) 2 Lewis CC 227, may be apposite to some extent: "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

26 26 The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative. 9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving

27 27 a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance. (emphasis supplied) Vi) Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others, (2005)8 SCC 67 The onus to prove and the manner of doing so in the case of a will is explained and the presumption that may drawn on Registration of the document is dealt with as follows : 22. The above findings, in our opinion, are erroneous. The trial Court also recorded wrongly a finding that the Will was not revocable overlooking the fact that in the very paragraph the testator reserved his right to cancel the Will and execute another Will. In our view, the findings of the High Court and the trial Court are not only contrary to the facts on record but also overlooked the law governing the aspects of proof of Will. Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a

28 28 document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. Section 63 of the Indian Succession Act gives meaning of attestation as under:- "Section 63: Execution of unprivileged will.- 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: (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. (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 will. (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 acknowledgment of 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

29 29 time, and no particular form of attestation shall be necessary." It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law. 23. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced

30 30 before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. 24. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed,

31 31 the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and

32 32 are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. Vii ) B. Venkatamuni vs. C.J.Ayodhya Ram Singh and others, AIR 2007 SC 311 In reversing a decision of the High Court, in a case where the will was found to be executed in compliance with the statutory requirements, the apex court held that that by itself would not be sufficient to sustain the same, where there were suspicious circumstances. Reference was made to Surendra Pal and Others, vs. Dr.(Mrs.)Saraswati Arora and another, (1974)2 SCC 600; H.Venkatachala Iyengar vs. B.N.Thimmajamma and

33 33 others, (1959) Supp.1 SCR 426; Smt. Guro vs. Atma Singh and others, (1992)2 SCR 30; Daulat Ram and others vs. SOdha and others, (2005)1 SCC 40, Meenakshiammal vs. Chandrasekaran, (2005)1 SCC 280; Pentakota Satyanarayana and others vs. Pentakota Seetharatnam, (2005)8 SCC 67. In particular, the apex court has with reference to the last mentioned case of Pentakota Satyanarayana, has expressed thus : 22. The principle was reiterated in Pentakota Satyanarayana and others vs.. Pentakota Seetharatnam and others, (2005)8 SCC 67, wherein it was stated: In the instant case, the propounders were called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. 23. However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record

34 34 meeting such pram facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same. 24. Each case, however, must be determined in the facts situation obtaining therein. 25. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance. 26. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.

35 35 Viii) Anil Kak Vs. Kumari Sharada Raje and others, (2008)7 SCC 695 It is opined thus: 52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine. This passage is again cited in the case of Bharpur Singh v. Shamsher Singh, 2009(3) SCC 687, at. paragraph 20 thereof. Ix) Gopal Swaroop Vs. Krishna Murari Manal and others, (2010) 14 SCC 266 It is held thus : 23. As was observed by this Court in H. Venkatachala Iyengar V. B.N.Thimmajamma, (AIR 1959 SC443), in the matter of proof of documents as in the case of the proof of wills, it is idle to expect proof with mathematical certainty. The test to be applied always is the test of satisfaction of a prudent mind in such matters. Applying that test to the case at hand we have no manner of doubt that the will executed by Shri Panna Lal, which is a duly registered document, is not surrounded by any

36 36 suspicious circumstances of any kind and is proved to have been duly and properly executed. X) M.B.Ramesh (dead) by Lrs. Vs. K.M.Veeraje Urs (dead) by Lrs. And others, (2013)7 SCC 490 The validity of a will was tested in a circumstance where an attesting witness had not specifically stated in his evidence that he had seen the other attesting witness sign the will in the presence of the testatrix. However, the apex court held that having regard to the fact that the said attesting witness had mentioned about the presence of the other witness being present when the will was written, has been held by implication and inference as proving the required attestation by the other witness; It is opined thus : 27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of Bombay High Court in Vishnu Ramkrishna Vs. Nathu Vithal reported in [AIR 1949 Bombay 266]. In that matter, the respondent Nathu was the beneficiary of the will. The appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended

37 37 on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Indian Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, though it was not convinced that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 CPC. The observations of Chagla C.J., sitting in the Division Bench with Gajendragadkar J. (as he then was in Bombay High Court) in paragraph 15 of the judgment are relevant for our purpose:- 15 We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent - and grossly negligent - in not complying with the requirements of S.63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not.

38 As stated by this Court also in R. Venkatachala Iyengar, AIR 1959 SC 443 and Smt. Jaswant Kaur, (1977)1 SCC 369, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court s role in matters concerning the wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2007(1) SCC 546]. In the present matter, there is no dispute about these factors. Keeping in view the above settled principles, if we examine the circumstances of the present case on hand, it is seen that the plaintiff had produced the registered will of the testatrix, which was more than 30 years old. Though Defendant no.1 had denied the genuineness of the will in her written statement, and had also cross-examined the plaintiff as regards the same, there is no suspicious circumstance that is sought to be raised as to the execution and registration of the same. The defendant no.1 had not chosen to tender any evidence.

39 39 It would be prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of satisfaction of the prudent mind in such matters. The propounder is required to show by satisfactory evidence that the will was signed by the testator or testatrix and that he or she was in a sound and disposing state of mind and that the nature and effect of the dispositions was understood and that the signature was subscribed of his own free will. The onus on the propounder can be taken to be discharged on proof of these essential facts. In the absence of examination of an attesting witness in the instant case on hand, as one was dead and the whereabouts of the other could not be traced, according to the plaintiff, the law required in terms of Section 69 of the Evidence Act, that the

40 40 attestation of at least one attesting witness, was to be established that it was in his handwriting and that the signature of the person executing the document is in the handwriting of that person. However, the plaintiff has candidly indicated that she was helpless in that regard. As the document was of some antiquity and significantly, in the cross-examination of the plaintiff, there is not even a suggestion that the signature of the testatrix was forged or that she was impersonated during the execution and registration of the document, when the testatrix has been duly identified before the Sub-Registrar and that authority has endorsed the same, as found from Exhibit P.2. Further, the nature of disposition where the testatrix has bequeathed her properties to defendant no.1 and her children jointly, there is no inequity and it does not give rise to any suspicion of the will being a concocted document. The strict rule of proof though would normally have to be insisted whether there is contest to the will or otherwise, if that is strictly enforced in respect of a document that is of sufficient antiquity, the benefit under Section 90 of the Evidence Act, is rendered a