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RSA No. 100637 of 2017

IN THE HIGH COURT OF KARNATAKA AT DHARWAD

DATED THIS THE 3

RD

DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

REGULAR SECOND APPEAL NO.100637 OF 2017 (DEC)

BETWEEN:

1. SMT. LALITAVVA,

W/O. PARASAPPA AGADI,

AGE: 30, OCC: HOUSEHOLD WORK,

R/O: AGADI, TQ: HAVERI,

DIST: HAVERI – 581 110.

2. NINGAPPA,

S/O. SHIVAPUTRAPPA ANGADI,

AGE ABOUT 28, OCC: MASON & BUSINESS,

R/O: DEVAGIRI-YALLAPUR,

TQ & DIST: HAVERI – 581 110.

3. SMT. NEELAVVA @ PRAMILAVVA,

W/O. SHIVAPPA ANGADI,

AGE: 58, OCC: HOUSEHOLD WORK,

R/O: DEVAGIRI-YALLAPUR,

TQ & DIST: HAVERI – 581 110.

4. SMT. GIRIJAVVA,

W/O. HANUMANTAGOUDA KAREGOUDRA,

AGE ABOUT 30, OCC: HOUSEHOLD WORK,

R/O: AT DEVAGIRI - YALLAPUR,

TQ & DIST: HAVERI – 581 110.

5. GUDDAPPA, S/O. SHIVAPPA ANGADI,

AGE ABOUT 28, OCC: COOLIE,

R/O: DEVAGIRI-YALLAPUR,

TQ & DIST: HAVERI – 581 110.

… APPELLANTS

(BY SRI N.P. VIVEKMEHTA, ADVOCATE)

AND:

1. NAGAPPA, S/O. ISHWARAPPA ANGADI,

AGE ABOUT 65,

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RSA No. 100637 of 2017

OCC: COOLIE (MESON WORK),

R/O: DEVAGIRI-YALLAPUR,

TQ & DIST: HAVERI – 581 110.

SMT. SHANTAVVA

W/O. MAHADEVAPPA JAVALI,

SINCE DEAD BY LR’S.

2. IRAPPA, S/O. MAHADEVAPPA JAVALI,

AGE ABOUT 48, OCC: COOLIE,

R/O: SWAGIYAVARA ONI,

BYDAGI, DIST: HAVERI – 581 106.

3. SMT. SHARAVVA @ SHARDHAVVA,

W/O. GADIGEPPA MALAKANNANAVAR,

AGE ABOUT 38, OCC: HOUSEHOLD WORK,

R/O: SWAGIYAVARA ONI, BYADGI,

TQ: BYADGI, DIST: HAVERI – 581 106.

… RESPONDENTS

(BY SRI SHIVARAJ S. BALLOLI, ADVOCATE FOR R1)

(V/O DATED: 15.12.2025 APPEAL AS AGAINST R2 STANDS

ABATED) (R3 - SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC.,

PRAYING TO SET ASIDE THE JUDGMENT AND DECREE OF THE

TRIAL COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM .,

HAVERI, DATED 30.06.2017 PASSED IN R.A.NO.44/2013 A ND

THE JUDGMENT AND DECREE OF THE COURT OF THE

ADDITIONAL CIVIL JUDGE HAVERI, DATED 09.04.2013 PAS SED

IN O.S.NO.99/09. TO GRANT ANY OTHER RELIEF THE

HONORABLE COURT DEEMS FIT IN FACTS AND

CIRCUMSTANCES OF THE CASE INCLUDING COST THROUGH

OUT BY ALLOWING THIS APPEAL IN THE INTEREST OF JUST ICE

AND EQUITY.

THIS APPEAL COMING ON FOR FURTHER HEARING,

HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON

22.07.2026, THIS DAY, THE COURT PRONOUNCED THE

FOLLOWING:

CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI

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RSA No. 100637 of 2017

CAV JUDGMENT

Defendant Nos.3 to 7 in O.S.No.99/2009 on the file

of learned Additional Civil Judge, Haveri (hereinaf ter

referred to as ‘the trial court’, for short) have maintained

this regular second appeal.

2.

The plaintiff namely Sri Nagappa maintained the

suit in O.S.No.99/2009 for the relief of declaration that he

is the owner of Schedule ‘A’ property, which is described

with letters ‘ABCDIHGFA’ in the hand sketch map ann exed

to the plaint as Schedule ‘C’, by virtue of Will da ted

13.01.1997 executed by his mother namely Smt. Shiva kka

and for possession of the portion shown with letter s

‘DEFGHID’ in the hand sketch map from Defendant Nos .5

to 7.

3.

The case of the plaintiff is that the government

granted the suit property bearing VPC Nos. 102 and 102A,

to his mother about 32 years ago and it was her abs olute

and separate property. He claims that his mother

bequeathed the suit property to him under a Will,

executed on 13.01.1997 with the consent of all her other

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RSA No. 100637 of 2017

children. According to him, his sisters (Defendant Nos.1

and 2) and brothers namely Shivaputrappa (the fathe r of

Defendant Nos. 3 and 4) and Shivappa (the husband o f

Defendant No. 5 and father of Defendant Nos. 6 and 7)

have signed the Will as witnesses. He stated that h is

mother expired on 17.09.1998, and thus he became th e

absolute owner of the suit property by virtue of the Will.

He further stated that his mother executed the Will in his

favour because Shivaputrappa and Shivappa had been

granted separate sites by the government. The plai ntiff

contends that due to financial difficulties, Sri Shivappa

could not construct a house on the site allotted to him;

hence, he started residing in a portion of the Schedule ‘A’

property measuring 12 ft. x 25 ft. (demarcated by letters

‘DEFGHID’ in the hand-sketch map) with the mother's

permission. It is stated that when the plaintiff requested

Defendant Nos. 5 to 7 to vacate and hand over possession

of the portion in their occupation, initially they requested

more time claiming they would sell the property allotted to

them and purchase a new house or take a house on re nt.

However, on 27.09.2008 when the plaintiff filed a Varadi

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RSA No. 100637 of 2017

for the mutation of the Khata of the suit property into his

name by virtue of the Will, Defendant No.7 filed hi s

objection and then concocted a false Varadi in his own

name as well as in the plaintiff's name, and succeeded in

getting his name entered for the portion marked

‘DEFGHID’ in the hand sketch map as VPC No.102A. Un der

these circumstances, the plaintiff maintained the suit for

declaration and possession.

4.

On service of summons the defendants

appeared before the trial court through their counsel.

5.

Defendant Nos.1 and 2 filed their written

statement admitting the entire averments of the plaint and

stated that they have no objection to decree the su it as

prayed for by the plaintiff.

6.

Defendant No.7, in his written statement,

specifically denied the execution of the Will by Sm t.

Shivakka in favour of the plaintiff bequeathing Schedule A

property to him. He has also denied the sons and

daughters of Smt. Shivakka having affixed their signatures

to the alleged Will as the witnesses. Thus, Defendant No.7

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RSA No. 100637 of 2017

denied plaintiff’s title over the suit property by virtue of

Will dated 13.01.1997. He contended that the suit

property was granted in the name of Smt. Shivakka f or

the benefit of the family and that they were in joi nt

possession of the said property. He claimed that

Smt. Shivakka gave a portion of the property measur ing

12 X 25 feet comprised of a dilapidated house to his father

in an apsat oral vatni, and thereafter Defendant Nos.5 to 7

constructed a new house in the said property. He al so

contended that Defendant Nos.3 to 7 together have 2 /5

th

share in the suit property and prayed for dismissal of the

suit.

7.

Defendant Nos.3 to 6 have adopted the written

statement filed by Defendant No.7.

8.

Based on the pleadings of the parties and the

documents available on record, the trial court framed the

following issues:

i) Whether the plaintiff proves that he is entitled for

declaration as absolute owner of suit schedule

property through Will executed by his mother

dtd: 13.01.1997?

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RSA No. 100637 of 2017

ii) Whether the plaintiff proves that the defendants

are in permissive possession in VPC No.102/A of

suit schedule property?

iii) Whether the plaintiff is entitled for possession of

whole suit schedule property?

iv) What order/decree?

9. The trial court, after taking the oral and

documentary evidence adduced by the parties, disposed of

the suit on merits of the case vide its judgment da ted

09.04.2013. The trial court held that the plaintif f has

proved due execution of the Will by Smt. Shivakka in his

favour and has acquired the ownership of the suit property

by virtue of the said Will. The trial court further held that

the plaintiff has proved that Defendant Nos.5 to 7 are in

permissive possession of the portion of suit proper ty,

shown with letters ‘DEFGHIG’ in plaint ‘C’ Schedule hand

sketch map. Accordingly, the trial court declared that the

plaintiff is the absolute owner of the suit property and

directed Defendant Nos.5 to 7 to vacate and handove r

vacant possession of the property bearing VPC No.10 2/A,

described as ‘DEFGHID’ in Schedule ‘C’ hand sketch map,

to the plaintiff within a period of three months.

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RSA No. 100637 of 2017

10. Defendant Nos.3 to 7 challenged the judgment

and decree of the trial court by preferring the appeal in

R.A.No.44/2013. The first appellate court, after re -

appreciating the materials on record, concurred with the

findings of the trial court and held that the decree passed

by the trial court does not suffer from any legal infirmity

and dismissed the appeal.

11.

Feeling aggrieved, Defendant Nos.3 to 7 have

preferred this regular second appeal. On 21.03.2025 this

Court admitted the appeal to consider the following

substantial question of law:

Whether the finding recorded by both the Courts

below that the plaintiff has removed the suspicious

circumstances on the alleged Will dated 13.01.1997

(Ex.P.5) is just and proper?

12.

Indisputably, the government granted Schedule

‘A’ property to Smt. Shivakka about 32 years ago. S he

died on 17.09.1998 leaving behind two daughters nam ely

Shantavva (Defendant No.1) and Sharadavva (Defendan t

No.2) and three sons namely Shivaputrappa (father o f

Defendant Nos.3 and 4), Shivappa (husband of Defend ant

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RSA No. 100637 of 2017

No.5 and father of Defendant Nos.6 & 7) and the plaintiff,

who is the youngest amongst her children.

13.

The case of the plaintiff is that Schedule ‘A’

property was the absolute and self-acquired propert y of

Smt. Shivakka. Whereas, Defendant No.7 contends tha t

the government granted Schedule ‘A’ property in the name

of Smt. Shivakka for the benefit of the family. However,

Defendant No.7 did not adduce any evidence on recor d to

substantiate his contention. In the said circumstances, the

courts below considering the materials on record such as

the admissions regarding grant of the suit property to

Smt. Shivakka, grant of separate sites to Shivaputr appa

and Shivappa, issuance of hakku patra of suit property in

the name of Smt. Shivakka as per Ex.P6, held that s uit

property was her exclusive and self acquired property.

14.

It is the specific case of the plaintiff that

Smt. Shivakka bequeathed the Schedule ‘A’ property in his

favour by executing a Will on 13.01.1997 with the consent

of all her other children, and that Defendant Nos.1 and 2,

Shivaputrappa and Shivappa have signed the Will as

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RSA No. 100637 of 2017

witnesses. Defendant No.7, however, has not only denied

the execution of the Will by Smt. Shivakka in favour of the

plaintiff but also denied that the sons and daughte rs of

Smt. Shivakka affixed their signatures to the Will as

witnesses.

15.

The trial court held that the plaintiff has proved

the execution of the Will on the ground that the plaintiff

during his evidence as PW-1 has identified the thum b

impressions of his mother, his sisters i.e., Defend ant

Nos.1 and 2 and of his brother namely Shivaputrappa and

the signatures of his another brother namely Shivappa and

the scribe in the original Will produced at Ex.P5. The trial

court further held that the plaintiff examined Defendant

No.1 as PW-2 to prove the Will. PW-2 deposed to th e

execution of the Will by her mother and that she and her

other siblings affixed their signatures to the document as

witnesses. The trial court further observed that Defendant

No.7 during his evidence as DW-1 expressed his ignorance

about his grandmother executing the Will at Ex.P5 and did

not deny its execution. The trial court opined that if at all

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RSA No. 100637 of 2017

Defendant No.7 were to strongly dispute the Will, nothing

prevented him from enquiring Defendant Nos.1 and 2

about the document, who have affixed their signatures as

the attesting witnesses. The trial court went on to hold

that apart from denying the execution of the Will

Defendant Nos.3 to 7 failed to raise any specific contention

about suspicions circumstances surrounding its execution.

Accordingly, the trial court proceeded to hold that the

plaintiff has proved the Will.

16.

The first appellate court, on re-appreciating the

evidence on record held that the document produced at

Ex.P5 reveals that Smt. Shivakka has bequeathed the suit

property to her son i.e., PW-1 and its execution an d

attestation is proved by the plaintiff by examining one of

the attesting witnesses. The first appellate court further

held that Defendant Nos.1 and 2 have specifically admitted

execution of the Will by their mother and there wer e no

suspicious circumstances surrounding its due execut ion.

Consequently, the first appellate court held that t he

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RSA No. 100637 of 2017

plaintiff has proved the Will produced at Ex.P5 and

acquired title to the suit property.

17.

Sri N. P. Vivek Mehta, learned Counsel for

Defendant Nos.3 to 7 vehemently submitted that the

courts below have erred in holding that the plaintiff has

proved due execution of the Will by Smt. Shivakka,

ignoring the failure on the part of the plaintiff to prove the

signatures of the testator and the attesting witnesses on

the alleged Will. He submitted that the courts below have

even ignored the suspicious circumstance surrounding the

alleged Will. He strenuously submitted that the alleged Will

dated 13.01.1997 came to light on 27.09.2008 when t he

plaintiff gave a vardi for mutation in his name based on

the Will and there is no explanation for keeping it under

cover for about 10 years though Smt. Shivakka died on

17.09.1998. He submitted that the plaintiff did not make

any effort to assert rights under the Will during the life

time of his brothers namely Shivappa and Shivaputra ppa,

who were said to be the witnesses to the alleged Wi ll.

Thus, he contended that the courts below erred in holding

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RSA No. 100637 of 2017

that the plaintiff has acquired title to the schedu le

property by virtue of the Will dated 13.01.1997.

18.

Per contra, Sri Shivaraj S. Balloli, learned

Counsel for the Plaintiff vigorously submitted that the

plaintiff proved the Will in question by complying with

Sections 63 and 68 of the Evidence Act. He submitted that

there was no dispute regarding the Will till 2008 and no

suit was filed claiming a share in the suit property. He

further submitted that the delay in propounding the Will

was not questioned or raised during the trial of the case.

He submitted that the sisters supported the case of the

plaintiff. As such, he contended that there is no substance

in the contentions raised by Defendant Nos.3 to 7 alleging

suspicious circumstances surrounding the execution of the

Will and prayed for the dismissal of the appeal.

19.

The legal principles in regard to the proof of a

Will are no longer res integra. The proof of Will is not

confined to proving of the signature of the testator on the

Will and its attestation in terms of Section 63(c) of the

Succession Act. Rather it is an exercise to satisf y the

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RSA No. 100637 of 2017

Court’s conscience that the testator had signed the Will

with free will, being aware of its contents and aft er

understanding the nature and effect of the dispositions in

the Will. In a case where the Will is surrounded by

suspicious circumstances, the propounder must expla in

those circumstances and dispel all reasonable doubt s

regarding its due execution.

20. In Shivakumar and Others Vs Sharanabasappa

and Others, reported in (2021) 11 SCC 277 , Hon’ble Apex

Court has broadly summarized the relevant principle s

governing the adjudicatory process concerning proof of a

Will, as follows:

“12.1. Ordinarily, a will has to be proved like any

other document; the test to be applied being the

usual test of the satisfaction of the prudent mind.

Alike the principles governing the proof of other

documents, in the case of will too, the proof with

mathematical accuracy is not to be insisted upon.

12.2. Since as per Section 63 of the Succession

Act, a will is required to be attested, it cannot be

used as evidence until at least one attesting witness

has been called for the purpose of proving its

execution, if there be an attesting witness alive and

capable of giving evidence.

12.3. The unique feature of a will is that it speaks

from the death of the testator and, therefore, the

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RSA No. 100637 of 2017

maker thereof is not available for deposing about the

circumstances in which the same was executed. This

introduces an element of solemnity in the decision of

the question as to whether the document

propounded is the last will of the testator. The initial

onus, naturally, lies on the propounder but the same

can be taken to have been primarily discharged on

proof of the essential facts which go into the making

of a will.

12.4. The case in which the execution of the will is

surrounded by suspicious circumstances stands on a

different footing. The presence of suspicious

circumstances makes the onus heavier on the

propounder and, therefore, in cases where the

circumstances attendant upon the execution of the

document give rise to suspicion, the propounder

must remove all legitimate suspicions before the

document can be accepted as the last will of the

testator.

12.5. If a person challenging the will alleges

fabrication or alleges fraud, undue influence,

coercion et cetera in regard to the execution of the

will, such pleas have to be proved by him, but even

in the absence of such pleas, the very circumstances

surrounding the execution of the will may give rise to

the doubt or as to whether the will had indeed been

executed by the testator and/or as to whether the

testator was acting of his own free will. In such

eventuality, it is again a part of the initial onus of the

propounder to remove all reasonable doubts in the

matter.

12.6. A circumstance is "suspicious" when it is not

normal or is "not normally expected in a normal

situation or is not expected of a normal person". As

put by this Court, the suspicious features must be

"real, germane and valid" and not merely the

"fantasy of the doubting mind".

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RSA No. 100637 of 2017

12.7. As to whether any particular feature or a set

of features qualify as "suspicious" would depend on

the facts and circumstances of each case. A shaky or

doubtful signature; a feeble or uncertain mind of the

testator; an unfair disposition of property; an unjust

exclusion of the legal heirs and particularly the

dependants; an active or leading part in making of

the will by the beneficiary thereunder et cetera are

some of the circumstances which may give rise to

suspicion. The circumstances above noted are only

illustrative and by no means exhaustive because

there could be any circumstance or set of

circumstances which may give rise to legitimate

suspicion about the execution of the will. On the

other hand, any of the circumstances qualifying as

being suspicious could be legitimately explained by

the propounder. However, such suspicion or

suspicions cannot be removed by mere proof of

sound and disposing state of mind of the testator

and his signature coupled with the proof of

attestation.

12.8. The test of satisfaction of the judicial

conscience comes into operation when a document

propounded as the will of the testator is surrounded

by suspicious circumstance(s). While applying such

test, the court would address itself to the solemn

questions as to whether the testator had signed the

will while being aware of its contents and after

understanding the nature and effect of the

dispositions in the will?

12.9. In the ultimate analysis, where the execution

of a will is shrouded in suspicion, it is a matter

essentially of the judicial conscience of the court and

the party which sets up the will has to offer cogent

and convincing explanation of the suspicious

circumstances surrounding the will.”

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RSA No. 100637 of 2017

21. Consequently, the Court must evaluate three

key elements to establish the valid execution of a Will: (a)

adherence to the formalities under Section 63 of th e

Succession Act; (b) compliance with Section 68 of t he

Evidence Act by examining at least one available attesting

witness; and (c) the dispelling of any suspicious

circumstances by the propounder through a convincin g

explanation. Apart from this, the Court must be satisfied

that the testator signed the Will of his own free will, fully

aware of its nature and effect.

22.

Turning to the case at hand, a careful perusal of

the materials on record make it evident that the co urts

below have not properly appreciated the evidence on

record before concluding that the plaintiff has proved the

due execution of the Will in question. The courts below

have not discussed the evidence on record to satisf y

themselves regarding the compliance with Section 63(c) of

the Succession Act and the reliability of the testimony of

PW-2 in support of plaintiff’s case. Further, the courts

below have not bestowed their attention on the suspicious

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RSA No. 100637 of 2017

circumstances surrounding the execution of the Will to find

out whether the propounder has discharged the burde n of

dispelling such doubts with a proper explanation.

23.

First of all, the plaintiff does not have sufficient

evidence to prove that the thumb impressions and th e

signatures found in Ex.P5 belong to the testator, t he

attesting witnesses or the scribe. The trial court relied on

the testimony of PW-1 to hold that he identified the thumb

impressions and the signatures of the testator and others

found in Ex.P5. No doubt, PW-1, during his examina tion-

in-chief, got marked the thumb impressions of the

testator, Defendant Nos.1 and 2 and Shivaputrappa a s

well as the signatures of Shivappa and the scribe in Ex.P5,

by asserting that he could identify their respective thumb

impressions and the signatures. However, it is to be noted

that the marking of the thumb impressions and the

signatures was done subject to an objection. Furthe r,

during his cross-examination conducted on 08.03.201 1,

PW-1 has unequivocally stated that he had seen the

signatures of the concerned persons for the first time in

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RSA No. 100637 of 2017

the Will and that he had not seen them prior to tha t. At

that time, PW-1 also categorically stated that he could not

say whether the signatures therein belonged to concerned

persons.

24.

The other witness examined on the side of the

plaintiff is PW-2, who is said to be the attesting witness to

the Will. The deposition of PW-2 indicates that she is

illiterate. During her cross-examination, PW-2

emphatically stated that she cannot identify the th umb

impressions or the signatures found in Ex.P5. In addition,

the plaintiff has chosen neither to examine the scribe of

the document nor to get an expert opinion to prove that

the thumb impressions and the signatures found in E x.P5

are those of the testator and the attesting witness es

named therein. Consequently, it is clear that the courts

below held that the plaintiff proved the Will without first

satisfying themselves as to the genuineness of the thumb

impressions and the signatures found in Ex.P5.

25.

The materials on record indicate that the courts

below failed to consider the contradictions in the testimony

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RSA No. 100637 of 2017

of PW-2 regarding the place of execution of the Wil l in

question. In her examination-in-chief, PW-2 stated as

follows:

“… D ¥ÀæPÁgÀ £À£Àß vÁ¬ÄAiÀÄÄ vÀ£Àß ªÀiÁ°ÌAiÀÄ ¸ÀéAiÀiÁfðvÀªÁzÀ D¹ÛAiÀÄ£ÀÄß

vÀ£ÀߣÀÄß ªÉÆÃzÀ°¤AzÀ®Æ ¸ÁQ ¸À®ÄºÀÄwÛgÀĪÀ £ÁUÀ¥Àà¤UÉ vÀ£Àß

ªÀÄgÀuÁ£ÀAvÀgÀ ªÀiÁ°ÃPÀ£À£ÁßV ªÀiÁqÀĪÀ §UÉÎ MAzÀÄ ªÀÄÈvÀÄå¥ÀvÀæªÀ£ÀÄß

§j¬Ä¹qÀĪÀÅzÁV £ÀªÀÄUÉ0Áè ºÉýzÀÝjAzÀ £À£Àß ¸ÀºÉÆÃzÀgÀgÀÄ £ÀªÀÄÆägÀ §½

EgÀĪÀ zÉêÀUÉÃj UÁæªÀÄzÀ ²æ §¸À¥Àà ªÀiÁ«£ÀªÀĤ@PÀë-ªÀgÀzÀ FvÀ£ÀÄ PÁUÀzÀ

¥ÀvÀæ §gÉAiÀÄÄvÀÛ£ÉAvÁ £ÀªÀÄä vÁ¬ÄUÉ ºÉý DvÀ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ

§gÀĪÀÅzÁV £ÀªÀÄä vÁ¬ÄUÉ w½¹zÀÝjAzÀ £ÀªÀÄä vÁ¬ÄAiÀÄÄ £À£Àß

¸ÀºÉÆÃzÀgÀjUÉ ¸ÀzÀj §¸À¥Àà ªÀiÁ«£ÀªÀĤ@PÀë-ªÀgÀzÀ ¸Á|| zÉêÀUÉÃj EªÀgÀ£ÀÄß

ªÀÄÈvÀÄå¥ÀvÀæ §gÉAiÀÄ°PÉÌ PÀgÉzÀÄPÉÆAqÀÄ §gÀĪÀAvÉ w½¹zÀgÀÄ. D ¥ÀæPÁgÀ £ÀªÀÄä

¸ÀºÉÆÃzÀgÀgÀÄ zÉêÀUÉÃj¬ÄAzÀ §¸À¥Àà ªÀiÁ«£ÀªÀĤ@PÀë-ªÀgÀzÀ FvÀ£À£ÀÄß

£ÀªÀÄä vÁ¬ÄAiÀÄ §½ PÀgÉzÀÄPÉÆAqÀÄ §A¢zÀÝgÀÄ.”

Whereas, during her cross-examination, PW-2 stated as

under:

“…£À£Àß vÁ¬Ä vÀ£Àß ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß zÉêÀVj UÁæªÀÄzÀ°è §gɹzÁݼÉ......

£ÁªÀÅ §gÉAiÀÄĪÀ ªÀåQÛUÉ PÀgÉzÀÄPÉÆAqÀÄ §A¢®è £ÁªÀÅ C°èà §gɹzÉÝêÉ. £ÁªÀÅ

ªÀÄÈvÀÄå ¥ÀvÀæªÀ£ÀÄß zÉêÀVj UÁæªÀÄPÉÌ ºÉÆÃV C°è §gɹzÉÝêÉ. ¸ÀzÀj «µÀAiÀÄ

¤d...”

26. PW-2 gave conflicting version even regarding

the persons present during the execution of the Wil l in

question. In her examination-in-chief, PW-2 stated that

her mother executed the Will in the presence of her four

children and asked them to sign the document as the

witnesses. Pursuant to this request she, her young er

sister and the brothers namely Shivaputrappa and

Shivappa signed the document. Further, during her cross-

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RSA No. 100637 of 2017

examination conducted on 14.06.2011, PW-2 categoric ally

stated that there were no persons present other than the

ones stated by her and that she could not say where the

plaintiff was at the relevant time. However, during her

further cross-examination conducted on 26.07.2011, PW-2

stated that all the five children including the pla intiff

Nagappa were present at the time of the execution o f the

Will.

27.

Indisputably, Smt. Shivakka left behind three

sons and two daughters. As per Ex.P5 the schedule

property was bequeathed exclusively in favour of the sole

beneficiary, namely the plaintiff. It is the case of the

plaintiff that because he took care of Smt. Shivakka with

love and affection and because she had greater affe ction

towards her youngest son, she bequeathed the schedu le

property to him. Further, it is contended that because the

government had granted separate sites to Shivaputra ppa

and Shivappa, the mother chose to bequeath the sche dule

property to him. No doubt the materials on record indicate

that the government had granted separate sites to

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Shivaputrappa and Shivappa and that Shivaputrappa w as

living in the house constructed on the site allotted to him.

However, the plaintiff has not offered any explanation as

to why the mother chose to exclude her two daughter s

while making the bequest in his favour.

28.

A perusal of the document produced as Ex.P5

indicates that it is an unregistered Will, prepared on plain

white paper. The document runs into two pages. Howe ver,

the alleged thumb impression of the testator is found only

on the last page of the document. Strangely, the signature

of the scribe is found immediately at the end of th e

recitals of the document, while the alleged thumb

impression of the testator is found after the signature of

the scribe. Neither the plaintiff nor PW-2 has chosen to

explain the circumstances in which the scribe had to affix

his signature to the document before the testator affixed

her thumb impression to the document.

29.

Apart from the above, the courts below failed to

consider the suspicious circumstances surrounding t he

execution of the Will in question. The trial court declined

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to examine this aspect on the ground that Defendant

Nos.3 to 7 did not raise any specific contention regarding

the suspicious circumstances surrounding the due

execution of the Will. Thus, the trial court failed to take

note of the suspicious circumstances naturally arising out

of the facts of the case.

30.

It is the specific case of the plaintiff that his

mother executed the Will on 13.01.1997, and handed it

over to him about seven to eight days prior to her death.

The mother of the plaintiff died on 17.09.1998. The Will

was brought to light for the first time on 27.09.2008 when

the plaintiff gave a vardi for mutation of khata into his

name based on the Will. Thus, it becomes clear that the

plaintiff did not disclose the existence of the Will for more

than ten years from the date of death of his mother.

31.

If indeed the mother had executed the Will in

the presence of all her children as claimed by PW-2, there

was no need for the plaintiff to wait for more than ten

years to seek mutation of khata based on the Will. During

his cross-examination the plaintiff claimed that in the year

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1998 itself he had submitted an application to the

panchayat for mutation of khata of the schedule property

into his name. However, the plaintiff did not produce any

document before the court to substantiate this contention.

On the other hand, the plaintiff stated that there was a

problem in producing a copy of the Will before the

panchayat during the year 1998, but he did not choose to

clarify what that problem was. It is also relevant to note

that the brothers of the plaintiff namely Shivaputr appa

and Shivappa were alive until the year 2005 and 200 8

respectively. The plaintiff did not assert his right to the

suit property based on the alleged Will during thei r

lifetimes even though he contended that they were

present at the time of the execution of the Will and had

attested it as a mark of their consent.

32.

Apparently, the courts below were swayed by

the fact that Defendant No.1 supported the case of the

plaintiff by stepping into witness box as PW-2, despite her

being disinherited under the Will in question. How ever,

the courts below failed to take note of her admission that

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she was living with the plaintiff at the relevant time, which

indicates that she was under some sort of obligation to the

plaintiff. Further, Defendant Nos.1 and 2 filed a common

written statement in the case admitting the claims of the

plaintiff. In addition to this, the plaintiff is married to the

daughter of Defendant No.2. Hence, this Court does not

find any justification in the approach of the courts below in

placing the testimony of PW-2 on a higher pedestal and

relying on it to hold that the plaintiff proved the Will in

question.

33.

Learned Counsel for the Plaintiff relied on the

decision in

Raja Shah and Others Vs Kowshik Show and

Others

reported in 2026 SCC Online Cal. 1122 and

fervently submitted that although the delay in bringing the

Will to light may arouse the suspicion of the court and may

raise an adverse presumption, the same is rebuttable. He

contended that once the execution and attestation o f the

Will are proved, and the delay is satisfactorily explained,

any lingering suspicion on the ground of delay beco mes

unwarranted.

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34. In Shivakumar’s case referred to supra, Hon’ble

Apex Court made it clear that the suspicion cannot be

removed by mere proof of sound and disposing state of

mind of the testator and his signature coupled with the

proof of attestation. It can only be dispelled by the

propounder offering a valid and acceptable explanation. In

this case, the plaintiff has not offered any explanation for

the delay in asserting his right to the property based on

the Will in question especially during the life times of his

brothers, namely Shivaputrappa and Shivappa.

35.

In the ultimate analysis, this Court is of the

considered view that the Will in question is non-compliant

with the requirements of clause (b) of Section 63 o f the

Succession Act. Furthermore, the propounder of the Will,

namely the plaintiff has failed to dispel the suspicious

circumstances surrounding its execution. The findin gs

recorded and the conclusions arrived at by the cour ts

below disregard the evidence on record and violate the

settled legal principles governing the proof of a Will. For

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the foregoing reasons, the substantial question of law

framed in the case is answered in the negative.

36.

In the result, this Court proceeds to pass the

following:

ORDER

i) The regular second appeal is allowed.

ii)

The judgment and decree dated 30.06.2017

passed in R.A. No.44/2013 passed by the

Court of learned Principal Senior Civil Judge

and CJM, Haveri and the judgment and

decree dated 09.04.2013 in O.S. No.99/2009

passed by the learned Additional Civil Judge,

Haveri are set aside.

iii)

Consequently, the suit in O.S. No.99/2009 is

dismissed.

iv)

The parties are directed to bear their

respective cost.

v)

Draw a decree accordingly.

Sd/-

(B. MURALIDHARA PAI)

JUDGE

KMS, RH, ASN

CT-ASC