IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD

Transcription

1 - 1 - IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 8 TH DAY OF AUGUST, 2012 PRESENT THE HON BLE MR. JUSTICE N. KUMAR AND THE HON BLE MR. JUSTICE H. S. KEMPANNA BETWEEN RFA NO 1386 OF 2007 SMT SULOCHANA MANVI AGED 68 YEARS R/O OPPOSITE MUNICIPAL OFFICE STATION ROAD GADAG APPELLANT (By SMT. JYOTHI P DESAI & SRI.MASHESH S.PATIL ADVS. ) AND 1. CHITRIKI SHIVAYOGAPPA S/O LATE THOTAPPA HINDU, AGE 73 YEARS, LANDLORD YESHWANTHPUR, SANDUR TALUK BELLARY DISTRICT MRUTHYUNJAYAPPA S/O LATE TOTAPPA AGE 71 YEARS, LANDLORD YESHWANTHPUR, SANDUR TALUK

2 - 2 - BELLARY DISTRICT RESPONDENTS (By Sri. V R DATAR ADV.) RFA FILED U/S 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED PASSED IN O.S.NO. 96/2004 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) BELLARY,DISMISSING THE SUIT FOR PARTITION AND POSSESSION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.KUMAR J., DELIVERED THE FOLLOWING: J U D G M E N T This is plaintiff s appeal challenging the judgment and decree of the trial Court which has dismissed the suit of the plaintiff for partition and separate possession. 2. For the purpose of convenience the parties are referred to as they are referred to in the original suit.

3 The genealogical tree appended to the plaint is not in dispute. The said genealogical tree discloses one Chitrike Karibasappa is the propositus. He had two sons Thotappa and Ajjappa. Thotappa and Ajjappa who constituted members of a co-parcenary and joint family with Chitrike Karibasappa effected partition of all the ancestral properties under a registered partition deed dated After such partition, Thotappa became a divided member. Thotappa had two wives, Smt.Murigemma, the first wife and Karibasamma, the second wife. Smt.Murigemma had a son by name Karibasappa. Karibasappa was married to one Smt.Gowramma. The plaintiff - Smt.Sulochana is their daughter. Thotappa through Smt.Karibasamma had two sons and two

4 - 4 - daughters; Shivayogappa and Mruthyunjayappafirst and the second defendants, Smt.Susheela and Smt.Sumangalamma. The daughters Smt.Susheela, the daughter, died issueless and she pre-deceased Sri.Thotappa. Sri.Karibasappa died in the year His widow Smt.Gowramma died in Smt.Karibasamma the second wife also predeceased Sri.Thotappa. Thotappa during his life time effected partition of all the joint family properties by way of a registered partition deed dated Thotappa died on The case of the plaintiff is Thotappa continued to hold the properties as Kartha of the joint family during the life time of plaintiff s father Karibasappa. During his life time till his death, there was no effective partition carried

5 - 5 - out by Thotappa in respect of the one-fourth share to which Karibasappa was entitled to. During the year 1954, the plaintiff was married to Siddalingappa of Gadag and started residing with her husband till October She was often visiting her ancestral house regularly. Out of the funds generated by the joint family of Thotappa, item No.1 of the schedule mentioned property viz. the building and open space situated at Kolachalam compound of Bellary was acquired. Similarly other immovable properties were also acquired by the members of the joint family on various dates. These properties are acquired or purchased in the individual names of either the defendants or their children. These acquisitions were out of the nucleus and funds generated by the joint family and do not have

6 - 6 - the character of independent property though standing in the name of the defendants and their children. The plaintiff was also visiting item No.1 of the plaint schedule properties at Bellary and similarly visiting the other properties situated at Sandur which are all agricultural properties and right from the time of the death of her father and mother, the plaintiff was assured a right to an extent of onefourth share out of the schedule mentioned properties. She has also secured usufructs from time to time. 5. The plaintiff after the death of her husband during the year 2001 met the defendants personally and requested for her share. There was no positive response. Therefore, she was forced to issue legal notice

7 - 7 - dated By that time, Thotappa had expired in the year The daughters of Thotappa through his second wife, Smt.Susheela and Smt.Sumangalamma have no rights over the suit schedule properties to the extent of plaintiff s claim of one-fourth share in the schedule mentioned properties. As the branch represented by Ajjappa have already effected partition and have taken their share and gone out of the joint family, only the shares of Karibasappa, Shivayogappa and Mruthyunjayappa alone are required to be determined by this Court. This branch is represented through Thotappa and his two wives. The defendants instead of conceding to the legitimate demand of the plaintiff have sent a reply to her notice dated They

8 - 8 - admitted that the one-fourth undivided share in the joint family property in the hands of Chitrike Thotappa. They also admitted that after the death of the plaintiff s mother, the plaintiff continued as a member of the joint family after her marriage. However, they have denied all other allegations. The plaintiff on account of her advanced age on account of the domestic problems associated immediately after the death of her husband, made diligent efforts in verifying these documents and became aware of the following facts. The plaintiff was shocked to be informed that there is an alleged will of Thotappa dated bequeathing his onethird share in the joint family properties to his two sons viz. the defendants equally. In the instant case, Chitriki Thotappa could not

9 - 9 - bequeath or in any manner settle the absolute properties in which late Karibasappa has also a right as son being a member of the joint family. In the second place no such rights could be transferred when no effective partition amongst the children of late Thotappa had taken place. Therefore, the defendants herein have to establish such execution and conveying of the right in respect of the plaint schedule properties as against the legitimate rights of the plaintiff herein. 6. The plaintiff was also in a position to secure the copy of the alleged partition deed dated The document is not sustainable under law for the similar reason that the schedule mentioned properties are allegedly partitione d amongst Thotappa and his

10 two sons ignoring the plaintiff s share, more particularly the first wife s share and excluding the rights in favour of the branch of the first wife is not in accordance with law. Therefore, the document is liable to be ignored by the plaintiff herein. Hence, the plaintiff is entitled to file the suit for partition. There is no necessity for the plaintiff to take any further steps for the purpose of seeking to set aside this document as, the document is void from inception. Any subsequent arrangements made by the two defendants herein by alleged division of the plaint schedule properties in favour of their children is not binding on the plaintiff as there is no valid partition till date in respect of the joint status of the plaint schedule properties and the plaintiff similarly chooses to ignore the

11 same. A reference is made by the defendants in the reply notice that some joint family properties were allegedly sold. Despite diligent efforts, the plaintiff is unable to secure any information about the properties being sold and the names of the purchasers. Since partition of the schedule properties are required to be made by this Court and equities are to be worked out, the plaintiff states that the properties allegedly alienated by the defendants may be allotted to the extent of their respective shares. The defendants be directed to reveal the alienation made to work out equities. Therefore, she filed a suit for partition and separate possession of her one-fourth share in all the suit schedule properties. In the schedule, the house at Bellary is shown as item No.1, building at

12 Yeshwantnagar is shown as item No.2, item No.3 is open space situated in Sandur, item No.4 is the motor shed, item No.5 is a house property at Yeshwantnagar, Item No.6 is the agricultural lands situated at Sandur which are 44 in number. In other words, the total extent of agricultural lands is acres. 7. After service of summons, the defendants entered appearance. The second defendant filed a detailed written statement contesting the claim of the plaintiff. The genealogy is admitted. The allegations that after the death of Karibasappa in 1939, his wife Smt.Gouramma along with the plaintiff succeeded to his undivided share as class I heir is denied. The allegations that after the life time of the plaintiff s father Karibasappa and after

13 his life time till his death there has been no effective partition carried out by Thotappa in respect of his one-fourth share to which Karibasappa was entitled is also denied as false. He specifically pleaded that there was a partition between Thotappa and the defendants under a registered partition deed dated Acquisition of the properties set out in the plaint is not correct. The plaintiff is not entitled to claim share in any one of them. The allegations that the plaintiff was visiting item No.1 of the plaint schedule property and other properties at Sandur and she was assured onefourth share in the schedule properties is false. The allegation that she has also secured usufructs from the agricultural lands from time to time is false. When the plaintiff has

14 absolutely no share in the suit schedule property, the question of Susheela and Sumangalamma claiming any share in the one fourth share of the plaintiff does not arise. 8. The allegations regarding Ajjappa going out of the joint family is now accepted. The court being called upon to declare the share of Karibasappa would not arise. Thotappa and his two sons defendants 1 and 2 divided the properties under a registered document dated The allegations that in the reply notice they have admitted that Karibasappa had one-fourth undivided share in the joint family property is false. The plaintiff s father Sri.Karibasappa, son of Sri.Thotappa by his first wife Smt.Murugamma, died in 1939 leaving behind his wife Smt.Gowramma and the plaintiff

15 as his heirs. Gouramma died in Karibasappa had one-fourth undivided share in the joint family properties. After the death of Karibasappa and during her life time his wife Gouramma mother of the plaintiff had no preexisting right to possession of any share in the properties belonging to the joint family. She has also never at any time in actual constructive or juridical possession of her husband s undivided share in the joint family properties. Subsequently after the death of her mother the plaintiff was also not in actual constructive or juridical possession of her alleged share in the joint family properties. Then the question of invoking Section 14(1) of the Hindu Succession Act, 1956 to claim an equal share with the defendant in the suit properties does not arise.

16 After the death of her mother the plaintiff continued as a member of the joint family till she was married in or about the year Neither the plaintiff nor her mother exercised the alleged right to a share in the family properties at any time from over a period of 60 years. Thotappa brought up the plaintiff and performed her marriage and gave her jewellery, cash etc. 9. Chitriki Thotapa died on Before his death he executed a will on bequeathing his undivided share in the joint family properties to the defendants. Thotappa Shivayogappa and Mruthyunjayappa got themselves divided under a partition dated Shivayogappa and his sons also got divided under a partition deed dated

17 Similarly Mruthyunjayappa and his son also got themselves divided under a partition deed dated Some joint family properties have been sold. Some of them are the self-acquired properties of the defendants. The plaintiff is aware of all the above facts and she did not claim any share in the suit properties. Even if the plaintiff had any semblance of right in the suit properties she has lost the same because by exercising all the acts of ownership by the defendants mentioned above which amounts to adverse possession and obliterates any right, title or interest in the suit properties. They have exercised the acts of ownership for over a period of 60 years prior to the filing of the suit. The sons of the first defendant and sons of the second defendant are necessary parties to the

18 suit in view of the partition deeds dated and referred to above. The suit therefore, is bad for non-joinder of necessary parties. The plaintiff having been married prior to 1960, partition having been effected on the plaintiff cannot claim any share left behind by Thotappa by virtue of Hindu Succession Act (Karnataka Amendment Act 1990). Neither the plaintiff nor her mother exercised and alle ged right to a share in the joint family properties at any time from for a period of 60 years. The plaintiff has not claimed any share in the usufruct from the agricultural land at any time. Therefore, the question of the defendants giving her any share in the usufructs nor promising to give does not

19 arise. Therefore, he sought for dismissal of the suit. 10. The first defendant filed a memo adopting the written statement of the second defendant. 11. On the aforesaid pleadings, the trial Court framed the following issues :- 1) Does the plaintiff prove that after the death of late Karibasappa in 1939, his wife Gowramma and the plaintiff succeeded to his undivided share in the suit schedule properties? 2) Does the plaintiff further proves that she is entitled to succeed to 1/4 th share of her late father? 3) Do the defendants prove that late Chitriki Thotappa executed a will dated in

20 their favour bequeathing his undivided share in the joint family properties to them? 4) Do the defendants further prove the subsequent partition as alleged? 5) Whether the plaintiff is entitled for the relief of partition and separate possession? 6) Whether the plaintiff is entitled for the relief of partition and separate possession? 7) Whether the plaintiff is entitled for mesne profits? 8) What order or decree. Additional issues : 1. Whether the suit is properly valued and the court fee is sufficient? 2. Whether the suit is barred by limitation?

21 Do defendants prove that, they have perfected their title to the suit properties by way of adverse possession? 4. Whether the suit is bad of non-joinder of necessary parties? 5. Whether the Hindu Women s Right to Property Act 1937 is applicable to the facts of the case. 12. The plaintiff in order to substantiate her claim examined herself as PW1 and produced 8 documents which are marked as exhibits P1 to P8. On behalf of the defendants the second defendant Mruthunjayappa was examined as DW1. One of the attesting witness to the will viz. Mariswamy was examined as DW2. Three documents were produced which are marked as exhibits D1 to D3.

22 The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has failed to prove that after the death of late Karibasappa in 1939, his wife Smt. Gowramma and the plaintiff succeeded to his undivided share in the suit schedule properties. She failed to prove that she is entitled to ¼th share of her father in the schedule properties. The defendants have proved that late Chitrike Thotappa executed a will dated in their favour bequeathing his undivided share in the joint family properties to them. They have also proved the subsequent partition in the year The plaintiff is not entitled to 1/4 th share in the suit schedule property. She is not entitled to the relief of partition and separate possession and

23 also she is not entitled to mesne profits. The suit is properly valued and court fee paid is sufficient. The suit is not barred by the law of limitation. The defendants have failed to prove that they have perfected title to the suit schedule property by way of adverse possession. Accordingly it dismissed the suit of the plaintiff. 14. The learned counsel for the plaintiff assailing the impugned judgment and decree of the trial court contended, during the life time of Karibasappa there was no partition in the family. In the joint family he had one-fourth share. On his death in the year 1939 by virtue of the provisions of the Hindu Women Right to Property Act, 1937 his widow Smt.Gowramma became entitled to the said one fourth undivided

24 share of Karibasappa in the joint family. On her death the plaintiff is entitled to the said share and therefore, the plaintiff is entitled to onefourth share in the suit schedule property. This aspect has been completely missed by the trial Court and therefore, the judgment and decree requires to be set aside. 15. Secondly, she contended the partition deed dated marked as Ex.P2 was not acted upon. Similarly, the will dated which is marked as Ex.D3 surfaced only after 42 years from the date of its alleged execution. The plaintiff s father is not a party to the partition deed of 1959 and therefore, the said partition do not bind his share. Insofar as the will is concerned, it is not the will of Sri.Thotappa. On the day the said will is said to have been

25 executed by him, he was not in a sound state of mind. Under the will no property is given to the plaintiff or to his own daughters and no reasons are forthcoming for disinheriting his daughters and grand daughter. The said will is not acted upon. Mutation entries are not made on the basis of the said will at all. The attesting witness DW2 in his evidence has categorically stated that the deceased Thotappa affixed the signature to the will after the first defendant gave concurrence to the same. It clearly demonstrates that the first defendant has taken active part in the preparation and execution of the will and therefore, he being the beneficiary of the will, the will is vitiated. He has not stepped into the witness box. He was kept away from the court. In fact, neither from the will nor

26 from the evidence adduced on record, it is possible to make out the place where the will was executed. The deceased Thotappa after the death of plaintiff s father and mother took care of her, performed her marriage in 1954, till his death the plaintiff was visiting him and therefore, there was no reason for the deceased Thotappa to disinherit the plaintiff. Therefore, there is no reason forthcoming why her father s share is not given to her. Therefore, she submits the will is not proved. Unfortunately, the trial Court has not applied its mind to these aspects. By a cryptic order it has held the will is proved which cannot be sustained. 16. In the alternative she submitted assuming that the partition deed of 1959 is valid and acted upon, in the said partition, one-third

27 share of the schedule properties have fallen to the share of Thotappa which became his separate property. In the said separate property on his death all the Class I heirs are entitled to equal share. Therefore, the plaintiff cannot be denied a share in the separate property of her grandfather-thotappa on his death. This aspect is also completely missed by the trial Court and it committed a serious error in dismissing the suit of the plaintiff. Therefore, she submits the appeal is to be allowed. The suit is to be decreed. 17. Per contra, the learned counsel appearing for the defendants submits the properties are situated in the erstwhile Sandur State. The Hindu Women Right to Property Act 1937 was not attracted and therefore, the

28 question of plaintiff s mother acquiring her right of one-fourth share in the undivided share in terms of the said Act would not arise. The share of her father devolved by survivorship on the other co-parcenory after his death. The plaintiff continued to be a member of the joint family till After her marriage, she ceased to be a member of the joint family. After her marriage in the year 1956, deceased Thotappa made a will bequeathing his undivided share in favour of his two sons. He excluded his own daughters and the plaintiff. He had performed their marriages and given them whatever legitimately due to them by way of gold, silver etc. Therefore, he had no intention of giving any share in the joint family property. Once the will is proved as held by the trial Court, the plaintiff cannot claim any

29 share even in the separate property of her grandfather because under the provisions of the Hindu Succession Act, 1956, though in the year 1956 there was no partition, Section 30 of the Act enable a co-sharer to bequest his undivided share. Therefore, the bequest of the undivided share by Thotappa in favour of his two sons is valid and legal. Merely because in 1959 they effected partition by metes and bounds and onethird share in the joint family was allotted to the share of Thotappa, that would in no way affect the validity of the will which was made four years prior to the execution of the will. The said separate property which fell to his share by virtue of the will devolves on his two sons. The two sons are enjoying his property continuously, jointly, uninterruptedly from 1960 till the date

30 of the suit. Therefore, the suit filed by the plaintiff nearly after 42 years is clearly barred by time. Therefore, he submits seen from any angle the judgment and decree of the trial Court do not call for any interference. 18. In the light of the aforesaid facts and the rival contentions the points that arise for our consideration in this appeal are as under :- 1) Whether the plaintiff and her mother acquired any right to the schedule property under the provisions of the Hindu Women Right to Property Act, 1937? 2) Whether the plaintiff is entitled to her legitimate share in the property which fell to her grand father Thotappa under the partition deed dated which is marked as Ex.P2 in the case.

31 - 31-3) Whether the finding of the trial Court that the will dated Ex.D3 is duly executed calls for interference? 4) Whether the suit of the plaintiff is barred for non-joinder of necessary party in particular the daughters of Thotappa? 5) Whether the suit is barred by time? POINT No The parties to the suit are all residing within the erstwhile princely State of Sandur. All the schedule properties except item No.1 are also situated within the princely State of Sandur. The succession to the immovable property is regulated by law of India. The parties are governed by Mitakshara School of Law, their personal law, law of domicile. The Hindu Women s Right to Property Act, 1937 was enacted which came into force from It applied to whole of India

32 except Part B States. Under the 1937 Act, for the first time, a Hindu widow was given rights in the Property Sub-section (1) of Section 3 of the Act provided for devolution of the property in the separate property of her husband, the widow was given a share as a son. In the hindu joint family property, this widow was conferred the same interest as her husband had, but the said right was a limited estate. The interest devolving on a hindu widow was a limited interest known as hindu women s estate, provided however, she shall have the same right of claiming partition as a male owner. As the said Act did not provide, what should happen on her death, the personal law of Hindus applied and the property which she was enjoying would revert back to the reversioners. In the instant case, the plaintiff s father Karibasappa died in 1939 while he was a member of the hindu undivided family as well as co-

33 parcener. During his life time, there was no partition. As the 1937 Act was not applicable to the princely State of Sandur, his widow did not get any right under the said Act to enjoy the said property. However, she also died within a year in The plaintiff was a member of the joint family. On the death of her parents, she continued to be the member of the joint family till 1954 till she was married. From 1954, after her marriage, she ceased to be a member of the joint family of her grandfather Thotappa and his sons defendant Nos.1 and 2. Therefore, in the light of these undisputed facts, the provisions of the 1937 Act was not attracted. The plaintiff s mother got no right under the said Act and, consequently, under the said Act, plaintiff also did not get any right. Therefore, the contention that plaintiff s father had 1/4 th share in the schedule property and on his death his widow inherited the said 1/4 th share and

34 on the death of the widow, her daughter, the plaintiff being the sole legal heir, is entitled to 1/4 th share is without any substance and the trial Court was justified in rejecting the said contention. POINT NO The material on record discloses that Thotappa and his two sons defendant Nos.1 and 2 effected a partition of all the joint family properties under a registered partition deed dated In the said partition, the following properties fell to the share of the deceased Thotappa which is described as Schedule A in the said partition deed: S.No. Ac.Ct. Asst. 75/ } G.Irr 73/ } } G.Irr. 249B } Hemalapur 143B Pk.Jt /1/ } Bandri Inam } Irr. G.Irr 199B } 199C }

35 Kampli Ramsagar Sondur Kerenalli Chikk } } B B Similarly, the defendant Nos. 1 and 2 were allotted their respective share in the joint family properties. Therefore, on execution of the said partition deed, the status of joint family came to an end. With the joint family properties having been partitioned by metes and bounds, the property which fell to the share of the deceased Thotappa became his separate property. Insofar as this separate property of Thotappa is concerned, when he died in the year 1960, under the provisions of the Hindu Succession Act, 1956, it devolved on his legal heirs under Section 8 of the Hindu Succession Act, firstly, upon the heirs being the relatives specified in Class-I of the schedule. Class-I of

36 the schedule sets out who are all the Class-I heirs under the Act, they are son, daughter, widow, mother, son of predeceased son, daughter of a pre-deceased son etc. The widow of Thotappa and the mother of Thotappa had pre-deceased Thotappa. The only legal heir who survived him are the sons defendant Nos.1 and 2, two daughters Sumangala and Suseela and daughter of a pre-deceased son i.e., the plaintiff. Therefore, all these Class-I heirs succeed to the estate of the deceased Thotappa in equal shares. In fact, in view of Section 6 prior to amendment, even if the deceased Thotappa had died as a coparcener as he left behind female heirs, the devolution of interest in coparcenery property has to be in accordance with the provisions of the Act viz., Section 8. In either event, all the Class-I heir succeed to the estate of the deceased Thotappa in equal shares. Therefore, in respect of the separate property of

37 deceased Thotappa which fell to his share under partition deed Ex.P.2 dated , the plaintiff being a class-i heir is entitled to a share. The material on record shows Smt.Suseela, the daughter died issueless. Therefore, number of sharers are plaintiff, defendant Nos.1 and 2 and another daughter of Smt.Sumangala. Each one of them is entitled to 1/4 th share in the separate property of deceased Thotappa. Therefore, the contention of the plaintiff that she is entitled to 1/4 th share in the entire suit schedule property which is a joint family property is not correct. The plaintiff is not a coparcener. She was not a member of the joint family on the date of partition. Therefore, she is not entitled to a share in the coparcenery property or joint family property by birth. Her right is only after the death of her grandfather deceased

38 Thotappa. On his death, in his separate property, she is entitled to 1/4 th share, as a class I heir. POINT No The case of the defendants is Thotappa, during his lifetime, bequeathed his 1/3 rd share in the joint family property in favour of his two sons defendant Nos.1 and 2 under a will dated which is marked as Ex.D.3. If the deceased Thotappa had bequeathed his undivided share in the joint family in favour of his two sons to the exclusion of his daughters and the plaintiff herein, notwithstanding the fact that all of them are Class-I heirs they would not be entitled to 1/4 th share in the separate property of Thotappa. Their right arises only when Thotappa died intestate. If, Thotappa during his lifetime has executed a testamentary instrument and bequeathed property in

39 favour of defendant Nos.1 and 2 and the testamentary instrument is held to be valid, the plaintiffs as well as his daughters would not get any right on his death. Therefore, defendant Nos.1 and 2 have set up Ex.D.3 the will of the deceased Thotappa. The plaintiff in his plaint has denied the execution of the will. She has also stated that defendant Nos.1 and 2 have got created this document; it cannot deprive her of a right in the schedule property. The Trial Court, on appreciation of the material on record has recorded a finding that this will is proved. Therefore, the plaintiff has no right in the schedule property. It is that finding which is challenged in this appeal. 23. The Supreme Court in the case of H.Venkatachala Iyengar vs B. N. Thimmajamma & Others reported in AIR 1959 SC 443 had an occasion to consider the true legal position in the matter of proof of

40 wills. After setting out various provisions of the Indian Evidence Act as well as the Indian Succession Act dealing with proof of will and the role of attesting witnesses in proving the will as well as the state of mind of the testator, held at para 19 as under: (19) However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document - propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory

41 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

42 not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion

43 in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. (21) Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear

44 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.

45 It is in the background of this legal position, we have to look at the will propounded by the defendant Nos.1 and 2 to defeat a legitimate share to the plaintiff in the estate of the deceased Thotappa. In fact, the learned trial Judge has not kept any of these legal principles in mind while considering the validity of the will. While dealing with the proof of will, in paragraph 13 of the judgment, this is all what the learned trial Judge has held xxxx Looking to the evidence of D.W.2, who has deposed in his evidence about the due execution of Ex.D.3 by Thotappa, looking to his entire evidence, it is clear that the will has been executed by the deceased Thotappa in the presence of two respectable persons. The will has been opened after 40 years after its execution by deceased Thotappa. Therefore, the evidence of D.W.2 is proving due execution of Will as per Ex.D.3 by the deceased Thotappa. One of the attesting

46 witnesses to Ex.D.3 is a senior Advocate of Bellary who is no more. Another attesting witness is D.W.2, who is still alive This is all the discussion made by the learned trial Judge in holding that the will is proved. In the light of the principles enunciated in the aforesaid judgment of Apex Court, this finding of the Trial Court cannot be sustained. The learned trial Judge has not referred to the contents of the will, evidence of the attesting witnesses, evidence of D.W.1, who has spoken about the execution of the will, their subsequent conduct in not taking any steps from 1960 till the exchange of notices to get the will of Thotappa, which is deposited with the District Registrar, opened. There is no indication in the judgment about the existence of any suspicious circumstance, the state of mind of the testator at the time of executing the will and how the

47 parties have dealt with these properties which is the subject matter of bequeath. Therefore, the findings recorded by the learned Trial Judge on the question of proof of will do not satisfy the legal requirements and it cannot be upheld. On that ground though this Court can set aside the said finding, it does not follow that the will is not proved. The appeal being continuation of the suit and this being a first Appellate Court under Section 96 of Code of Civil procedure, when the Trial Court has not done the exercise which it was expected to do, an obligation is cast on the first Appellate Court as a final Court on facts to perform the very same function which a trial Judge ought to have performed. Therefore, it is necessary for this Court to appreciate the evidence on record in the light of the principles laid down in the aforesaid judgment of the Apex Court and then record a

48 finding of fact whether Ex.D.3, the will, propounded by defendant Nos.1 and 2 is proved or not. 26. Exhibit D.3, the will, is dated On the date of the will, the members who constituted the joint family are Thotappa, his two sons defendant Nos.1 and 2 and their wife and children. Plaintiff, who was a member of the joint family ceased to be a member of joint family from the year 1954 after her marriage and when she became a member of joint family of her husband. Similarly, Sumangala, the daughter of Thotappa, was married and she also was not a member of the joint family on the date of the will. Suseela the other daughter was also married and she was living with her husband. It is in this background, we have to see the mind of the testator for executing the will. A perusal of the contents of the will shows that the testator has asserted that he has an undivided 1/3 rd

49 share in the joint family properties; he has performed marriage of his daughters and their daughters; and he has given gold, ornaments and also stridhan properties; he did not want any dispute in respect of the joint family property after his death. Therefore, he gave equal share in his share of property to defendant Nos.1 and 2. He has stated in the will that his daughters and the plaintiff would not have any right in respect of his share in the joint family property. In the will, the properties which belong to the joint family are not set out. In the will, though the address of the testator is given as residing at Yeshwantnagar in Sandur Taluk of Bellary District, we do not get any indication where the will was written. On the contrary, the will is attested by two witnesses one Srinivasa Iyer, an advocate and one M.Mariswamy, both of them who are from Bellary. Even there is no indication that the will is executed at

50 Bellary. But, we have the evidence of D.W.2 one of the attesting witnesses which throws some light on the execution of this will. According to him, he is one of the attestors to the will-ex.d.3 executed by Chitriki Thotappa; he knew him long before the execution of the will; the other witness was one K.Srinivasa Acharya, advocate of Bellary; he and the other attesting witnesses attested the will of Thotappa in the presence of each other and also in the presence of the testator and he identified signature of the other attesting witness. He further states in examination-in-chief that the other attesting witnesses K.Srinivasa Acharya is no more. He identifies the signatures of the testator and other attesting witness and his signature on Ex.D.3 as Exs.D.3(a), D.3(c) and D.3(d). In the cross-examination, he states he was present at the time of writing the will by the testator. Therefore, the author of the will is the

51 testator. According to him, firstly, a rough draft was written, thereafter, a fair will was written. He has categorically stated that the 1 st defendant-shivayogappa was present at the time of writing the will; Shivayogappa, after hearing the contents of the will, told his father that the contents are correct and his father then put his signature. If, what he is stating is the truth, then if the testator is the author of the will, the question of Shivayogappa telling his father that the contents are correct and then his father putting his signature to the said will would not arise. If only the will is written by somebody else and then it is read over and after hearing the contents of the will, the 1 st defendant could have told his father that the contents are correct and then his father could put his signature in token of acceptance of the contents of the will if the said contents are according to his will and wish. Therefore,

52 this evidence of D.W.2 itself creates suspicion. It is in this background, we have look into the original will which is before us. The original will is handwritten; it is in Kannada; it is in particular ink. If, really, the testator has written the entire will in his own handwriting and then affixed his signature, the ink of the signature and the ink of the rest of the contents of the will should be one and the same. To the naked eye, the difference in the ink can be clearly seen. That apart, if we look into the handwriting and then look into the signature of the deceased testator, it does not appear to be in the handwriting of the very same person. The contents of the Will is in Kannada. Strangely the signature of the testator is in English. There is no evidence on record to show the educational qualification of the testator. What is his competence to draft a Will is not forthcoming. The way the facts are narrated in the Will show, the Will is

53 drafted by a professional. It is nobody s case that he took any assistance from the document writer or an Advocate. It is curious to note that, a senior Advocate is one of the attesting witnesses to the Will. If the evidence of P.W.1 and P.W.2 is to be believed this Advocate had no role to play in the preparation of the Will. He was not consulted. His assistance is not taken in the preparation of the Will. The ink of his signature and the ink of the contents of the Will appear to be in the same pen and ink. This witness, who is a senior Advocate is admittedly the senior of P.W.1 who himself is an Advocate. Though the testator had by his side a senior Advocate and his second son P.W.1 an Advocate, he has not taken any assistance in preparing the Will. This itself constitutes a suspicious circumstance surrounding the preparation and execution of the Will. It is in this context, it was of utmost importance that

54 the 1 st defendant-shivayogappa, who was present at the time of his father executing the will, should have entered the witness box and satisfactorily explained to the Court the suspicious circumstance. In fact, the defendant No.1 has not chosen to file a written statement; he has adopted the written statement filed by the 2 nd defendant. Similarly, before the Court he has not entered the witness box. As is clear from the aforesaid judgment of the Apex court, when the propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits, such a will suffers from infirmity. If it is shown that propounder has taken a prominent part in 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

55 will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. 27. In the instant case, it is not in dispute that half the property of the testator has been bequeathed to the 1 st defendant who has taken a prominent role in the execution of the will. Therefore, when the evidence of D.W.2 clearly shows that the testator affixed his signature to the will only after the concurrence from the 1 st defendant and under the will, the 1 st defendant got 50% of the share of the testator, the will suffers from an infirmity as held by the Apex Court in the aforesaid judgment. In those circumstances, a duty was cast on the 1 st defendant, who is propounding this will, to enter the witness box and remove the suspicious circumstance by satisfactory evidence. It is here nonexamination of the defendant is fatal to the case of the defendants. As held by the Apex Court in the aforesaid

56 judgment, a suspicious circumstance exists and the same is not removed by satisfactory evidence by propounders of the will. In this regard, the Court is deciding a solemn act of execution of a Will and it must be fully satisfied that it had been validly executed by the testator who is no longer alive and it is the satisfaction of the Court that there is nothing suspicious in the execution of the will which should form the basis for holding that the will is duly executed. According to D.W.2, the will is written at Yeshwantnagar, which is situated about 60 kms. away from Bellary. Now, we have on record the cover in which this will was kept sealed and deposited with the District Registrar. The endorsement made on the said cover shows that the said will was presented before the District Registrar between noon and 1.00 p.m. of 26 th day of July The evidence of D.W.2 further shows that after

57 signing the will, himself and Srinivasa Iyer returned to Bellary. Therefore, he sticks to his stand that the will was written at Yeshwantnagar other attesting witnesses were present at that time, after the will was written, testator affixed his signature, then the attesting witnesses affixed their signature in his presence and then returned to Bellary. The said cover further discloses the signature of both the attesting witnesses on the cover and they are identified by the Registrar as required under law. It means, these two attesting witnesses not only attested the will but also were present before the District Registrar at the time of handing over the cover containing this will. D.W.2 does not whisper about his presence at the office of the District Registrar, his affixing signature on the cover and then being present at the time of handing over the cover by the testator to the District Registrar and the

58 District Registrar identifying them as required under law. This is yet another suspicious circumstance, which has not been satisfactorily explained by the propounder of the Will including D.W.1 who is an Advocate by profession in the beginning and later who became a Public Prosecutor. 28. It is not in dispute as is clear from the terms of the Will no property is given to the daughter of the deceased testator nor to the plaintiff, his son s daughter. It is well settled that if the persons who would get the property of the testator by inheritance are deprived of the said property by a Will and no reasons are coming forward to explain this disinheritance, that itself constitutes a suspicious circumstance. Then again a duty is cast on the propounder of the Will to remove the said suspicious circumstance. In the Will all that has been said is, testator has performed the

59 marriages of his daughter and the plaintiff and none of them are living with him. He has given them gold ornaments and stree dhana; he does not want any dispute after his death in respect of his share in the joint family property and therefore he is making the Will. Absolutely no material is placed on record by the propounder of the Will to show what is that stree dhana given to the plaintiff and to the other daughters. In so far as gold ornaments are concerned, it is customary in a Hindu family especially when people are coming from a fairly affluent rich family as that of the parties to the proceedings, daughters are given these gold ornaments. That cannot be construed as a share in a joint family property. If any property is given as stree dhana out of the joint family property, probably that would be a sufficient ground to deny a share in the joint family property. Though there is a reference to stree dhana in

60 the Will, absolutely no evidence is place on record. On the contrary, the evidence on record discloses, not an inch in the joint family property is given to the plaintiff in particular and to the daughters of the deceased testator. If no stree dhana property out of the joint family property is given and if no reasons are given for denying the daughters of the family and the plaintiff who is a son s daughter, that itself constitutes a suspicious circumstance, which compels the propounder to give satisfactory explanation to discharge the said suspicious circumstance. No evidence is coming forward in this direction. If really the testator wanted to exclusively give his share in the joint family property to his two sons and he had no intention of giving any such property to his daughters or to the plaintiff who is none other than a son s daughter and he bequeathed his undivided share under Ex.D.3, three

61 years thereafter he has effected a partition of the joint family property by way of a Registered Partition Deed- Ex.P.2 dated In the said registered partition deed there is no reference to this Will-Ex.D.3. The recitals in the said partition deed makes it clear in order to prevent any disputes arising in future and consequently the family getting into difficulties, the parties, i.e., the testator and his two sons, decided that it is proper to live separately. Therefore they effected partition of all the joint family properties under Ex.P.2; the gold and silver utensils and other household articles were distributed, then the immovable properties were divided into three shares, i.e., A, B & C. A share was allotted to the share of the testator; B and C shares were allotted to the share of the defendant nos. 1 and 2. Full description of the properties were given. On the day the partition deed was executed the testator