in the high court of karnataka at bengaluru the honourable...

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® IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 06TH

DAY OF FEBRUARY 2015

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL No.1316 OF 2011

BETWEEN:

Smt. M. Narayanamma,

Wife of G. Hanumanthappa,

Aged 69 years,

Landlord, Hindu,

Residing at Chikka Basavanapura,

Virgonagar Post,

K.R.Puram Hobli,

Bangalore – 560 049.

… APPELLANT

(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,


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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,


4. C. Krishnareddy,

Son of Late C. Obala Reddy,

Major,

Resident of Om Sudarshan Nilaya,

4th

Cross, College Road,

K.R.Pura, New Extension,


5. Sri. D.K.Devendra,

Son of D.K.Krishnappa,

Aged 42 years,

Resident of 265, Ahaya Nivas,

Devasandra, K.R.Puram,


…RESPONDENTS

(By Shri. Amit Deshpande, Advocate for Respondent No.1

Respondent nos. 2, 3 and 5 are served

Vide order dated 8.1.2015 service of notice to respondent no.4 is

dispensed with)

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This Regular First Appeal filed under Section 96 of the

Code of Civil Procedure, 1908, against the judgment and decree

dated 2.4.2011 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 22.01.2105 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

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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

12.8.1988.

It is stated that Lakshmamma had executed a Will, dated

20.2.1971, 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.

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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 25.6.2002, restraining the defendants

1 to 3 from alienating the suit property. Notwithstanding the said

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order of injunction, the defendants 1 to 3 are said to have executed

a sale deed dated 3.12.2004, 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

20.2.2003 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 31.10.2001. 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.

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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 30.12.2004. 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 20.2.1971

bequeathing the suit schedule property in favour of

the parties herein?

2. Whether the plaintiff proves that she

is entitled for 1/4th

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?”

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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

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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 1766.

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

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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 24.6.2002, the plaintiff had

produced the original registered will of Lakshmamma, her grand

mother, dated 20.2.1971 and the same was marked as Exhibit P2,

in the course of her examination–in-chief, by way of evidence,

tendered on 3.2.2005. 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.

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The relevant provisions of law are extracted hereunder for

ready reference.

Section 63(c) of the Indian Succession Act, 1925

“63(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, 1872

“68. Proof of execution of document required by

law to be attested. – If a document is required by law to be

attested, it shall not be used as evidence until one attesting

witness at least has been called for the purpose of proving

its execution, if there be an attesting witness alive, and

subject to the process of the Court and capable of giving

evidence:

[Provided that it shall not be necessary to call an

attesting witness in proof of the execution of any document,

not being a Will, which has been registered in accordance

with the provisions of the Indian Registration Act, 1908 (16

of 1908), unless its execution by the person by whom it

purports to have been executed is specifically denied.]”

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“90. 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.”


“114. 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

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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

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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

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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

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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

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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

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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

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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

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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)

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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

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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 :

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“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 180 + (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

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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

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Indian Evidence Act, 1872. 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."

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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

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

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

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

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

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

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

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

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 sub-

serve 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

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

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

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

28. 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

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

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

41

dead letter and that is never the intent of the law. It may be that if

there are indeed any suspicious circumstances shown to be present

surrounding the execution of the will, the propounder must

remove the said suspicions from the mind of the court by cogent

and satisfactory evidence, and would not be permitted to seek

refuge under Section 90 of the Evidence Act.

There is nothing brought on record to doubt the competence

of the testatrix 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 testatrix and execution of

the will in the manner contemplated by law. Defendant no. 1

ought to have brought material on record meeting such prima

facie case. In which event the onus would have shifted back on to

the propounder to satisfy the court affirmatively as to the

genuineness of the will, the due execution and registration thereof.

It is noticed that in Bharpur Singh’s case supra – which

was relied upon by the appellant, and other decisions of the apex

court, where the strict compliance with the requirement of the

42

manner in which a will shall be proved is insisted upon , are all

cases where there was serious contest as to the genuineness of the

will and there was material on record to indicate that the

document could not be readily accepted. Whereas for reasons

stated and in the light of other decisions which are referred to

hereinabove, the benefit of Section 90 of the Evidence Act cannot

be denied to the plaintiff.

The appellant is not entitled to any relief for yet another

reason. The conduct of defendants 1 to 3, is found wanting in

bona fides. It is evident that the said defendants have acted in

blatant disobedience and in flagrant violation of the order of

temporary injunction of the trial court in having alienated the suit

property in several parcels during the pendency of the suit.

Defendants 1 to 3 have in fact, claimed to have no subsisting

interest in the property. The several alienations subsequent to the

suit are hit by the doctrine of lis pendens and would not bind the

interest of the plaintiff. In view of the bequest under the will in

43

question having been established by the plaintiff, any alienation of

any portion of the suit property even prior to the suit would not

bind the interest of the plaintiff.

Incidentally, the first defendant has filed an application,

seeking to amend the written statement filed before the trial court,

before this court in this appeal. The contents of that application

further confound the case of defendant no.1.

The application was ordered to be heard along with the

main appeal. The proposed amendment is as follows :

“11(a): The suit schedule properties are the subject

matter of the registered Sale Deeds executed by this

defendant along with her deceased mother

Smt.Lakshmamma. All the 3 sale deeds are dated 11.8.1988

and registered as document Nos. 5838, 5839 and 5847 of

1988-89. Two of the sale deeds are in favour of Mrs.

Saidanbi and one sale deed is in favour of Mrs. Mubeen Taj.

Under the said sale deeds, the entire property is sold away

and the purchasers are placed in possession of the same.

Hence, the suit properties are not available for partition.

11(b): All the above said 3 sale deeds are executed

by this defendant and her deceased mother Smt.

Lakshmamma through their GPA Holder Sri. Naseer Khan

son of Mohamood Khan. The G.P.A. is dated 6.4.1988 and

44

is registered in the office of the Sub Registrar as document

No.9/1988-89.

11(c): Since Lakshmamma, the owner of the suit

schedule properties executed the aforementioned sale deeds,

thus conveying the suit property in favour of the purchaser,

the Will dated 20.2.1971 relied on by the plaintiff stood

automatically revoked and annulled and therefore, plaintiff

cannot maintain any suit on the basis of the said Will. This

defendant respectfully submits that the contention urged in

this para is without prejudice to all other contentions urged

by her, disputing the Will in question.

11(d): Since the suit properties are already sold

away in favour of the purchasers mentioned above and since

it is the purchasers who are in possession of the suit

schedule property, they are necessary parties to the suit and

hence the suit is liable to be dismissed for this reason also.”

It is evident that the defendant seeks to set up a totally

contradictory defence by virtue of the said proposed amendment.

In that, it was the defendant’s categorical stand that she was in

possession of the suit property as on the date of filing of the

written statement. Though inconsistent pleas are permissible, by

way of pleadings, the same ought to be mutually exclusive and

sustainable. On the other hand, the proposed amendment would

45

be fatal to the case of the defendant and cannot be permitted. The

said application is rejected.

The appellant’s application to file additional evidence is

again in support of the proposed amendment and the same cannot

be permitted. The reasons assigned in support of both the above

applications one not tenable and cannot be accepted. The said

applications are summarily rejected.

In the light of the above, the appeal is dismissed. The

judgment of the trial court is affirmed, in the light of the reasoning

hereinabove.

Sd/-

JUDGE

nv*