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CASE NO.:

Appeal (civil) 3749 of 1999

PETITIONER:

Sridevi & Ors.

RESPONDENT:

Jayaraja Shetty & Ors.

DATE OF JUDGMENT: 28/01/2005

BENCH:

ASHOK BHAN & A.K. MATHUR

JUDGMENT:

J U D G M E N T

Plaintiffs who are the appellants have filed

this appeal assailing the judgment and decree passed

by the High Court of Karnataka in Regular First

Appeal No. 715 of 1988 to the extent it has gone

against them. By the impugned judgment, the High

Court has affirmed the judgment and decree passed by

the Trial Court.

Facts :

One Padmayya Kambali was the owner of the

disputed suit properties. He had four sons and

three daughters. Appellant Nos. 1 & 2 are the

daughters and appellant No. 3 is the granddaughter

through the third daughter who has died. Defendant-

respondent Nos. 1 to 12 are the grandchildren of

Padmayya Kambali through his three sons and 13th

Respondent is his 4th son. Padmayya Kambali died on

13.4.1976. At the time of his death he left behind

vast properties some of which he had inherited from

his brother and includes properties which vested in

the State of Karnataka in respect of which

compensation was paid. He executed a will dated

28.3.1976 (Exhibit D-1) which was got registered on

11.9.1980

Appellants filed the suit being Original Suit

No. 5 of 1981 for partition and separate possession

of 7th share for each of the appellants of the

properties described in the Schedules 'A', 'B', 'C'

and 'D' attached to the plaint. Schedule properties

'A', 'B' and 'C' are immovable properties whereas

'D' schedule properties are movable properties. It

was alleged in the plaint that the suit properties

are the Joint Hindu Family properties and the

appellants being the natural heirs are entitled to

7th share each in the suit properties. It was also

averred that respondents were enjoying the

properties to the exclusion of the appellants and

were not willing to partition the properties or come

to a reasonable or amicable settlement. Nothing has

been stated about the will in the plaint as

according to them it had not been brought to their

notice prior to the filing of the written statement.

Respondent Nos. 1-7 in their written statement

admitted the contents of the plaint. Respondent

Nos. 8-12, wife and children of Darmaraja Kadamba (a

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pre-deceased son of the testator), and Respondent

No. 13 \026 Raviraja Kadamba contested the suit.

According to them, there was a partition in the

family under a Registered Partition Deed (Exhibit D-

4) dated 4.1.1961. Under the said partition, the

female members were allotted major shares in the

properties which were in personal cultivation and

enjoyment of the family whereas Dharmaraja Kadamba

(deceased) \026 husband & father of Respondent Nos. 8

to 12 and Raviraja Kadamba \026 Respondent No. 13, were

allotted properties which were in possession of the

tenants. After the coming into force of the

Karnataka Land Reforms (Amendment) Act, 1973, Act 1

of 974, all tenanted lands vested in the Government

and the two sons were left with no properties. In

order to correct the injustice done to these two

sons, Padmayya Kambali bequeathed schedule

properties 'A' and 'B' (which were not under the

tenants) in their favour and the daughters i.e. the

appellants were given the right to receive

compensation in lieu of the lands which were with

the tenants and had vested in the Government under

the Land Reforms Act. It was averred that Padmayya

Kambali executed the will of his own while in sound

disposing mind. At the time of execution of the

will, he was in possession of his physical and

mental faculties. It was averred that except the

properties which are the subject matter of this

appeal and are shown in schedule 'A' & 'B' to the

will, other properties were amenable to partition.

Insofar as immovable properties are concerned, they

were divided amongst the heirs soonafter the death

of Padmayya Kambali. It was also averred that the

contents of the will executed by the testator were

disclosed at the time of final obeisance ceremony of

Padmayya Kambali in the year 1976.

The Trial Court framed relevant issues.

Appellants examined PWs. 1 to 4 and got marked

Exhibits P-1 to P-15. The respondents examined 5

witnesses which included Respondent No. 13 \026

himself, Scribe and two attesting witnesses of the

will, hand-writing expert and got marked documents

Exhibits D-1 to D-5.

The Trial Court after considering the entire

material and evidence on record found that the will

executed by Padmayya Kambali was genuine and valid.

It was held that the schedule properties Schedule

'A' & 'B' bequeathed in favour of his two sons viz.

Dharmaraja Kadamba and Raviraja Kadamba under the

will are not amenable to partition. Regarding the

other properties the suit was decreed. There is no

dispute regarding the properties in respect of which

the suit has been decreed.

Assailing the findings of the Trial Court that

the will is genuine and valid, the appellants filed

First Appeal in the High Court. It was alleged in

the memo of appeal that the execution of the will

has not been proved in accordance with law and that

there were suspicious circumstances surrounding the

will which the propounder of the will failed to

dispel by leading cogent and acceptable evidence.

The High Court after re-examining the entire

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evidence present on the record held that the scribe

in his testimony had vividly stated that the will

was drafted on the dictation of the testator as per

his desire. The two attesting witnesses had stated

that the will was read to the testator and the

testator, after understanding the contents thereof,

signed the same. The testator signed the will in

their presence and they had signed the will as

attesting witnesses in his presence. Hand-writing

expert produced by Respondent Nos. 8-13 corroborated

the testimony of the scribe and the two attesting

witnesses. He compared the signatures of the

testator on the will (at 6 places) with his admitted

signatures and in his opinion the signatures

appending to the will were that of the testator.

Accordingly, the appeal was dismissed aggrieved

against which the present appeal has been filed.

Counsel for the parties addressed arguments on

Issue No. 4 only, which is to the following effect

:-

"Whether the Will dated 28.3.1976 executed by

Late Padmaraja Kambali set up by the defendants

8 to 13 is true and valid and executed by late

Padmaraja Kambali in sound and disposing state

of mind?"

Shri Sanjay Parikh, learned advocate appearing

for the appellants strenuously contended that the

will propounded by the respondents was not a duly

executed will. According to him, the burden to

prove due execution of the will was on the

propounders of the will which they have failed to

discharge. That the will was surrounded by

suspicious circumstances. The burden to remove the

suspicion on the due execution of the will was also

on the propounders which they have failed to

discharge. According to him, the testator died

within 15 days of the execution of the will and that

he did not have the testamentary capacity to execute

the will. Respondent No. 13 had taken a prominent

part in the execution of the will as he was present

in the house at the time of the alleged execution of

the will. That natural heirs had been excluded from

the properties bequeathed in favour of Dharmaraja

Kadamba and Raviraja Kadamba without any valid

reasons. That the respondents had failed to

disclose the execution of the will in any of the

earlier proceedings before the revenue authorities

and the forest authorities which were contested

between the appellants and Respondent Nos. 8-13

which throws a grave and serious doubt about the due

execution of the will. That the will was got

registered after a lapse of 4 years and did not see

the light of the day till it was produced in the

present proceedings after a lapse of more than 6

years. That the burden to dispel the suspicious

circumstance enumerated above was on the propounders

of the will which they had failed to discharge by

leading cogent and acceptable evidence. As against

this, Dr. Rajeev Dhavan, learned Senior

Counsel appearing for the Respondent Nos. 8-13

contended that the due execution of the will had

been proved by the testimony of the scribe and the

two attesting witnesses coupled with the testimony

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of the hand-writing expert. That the attesting

witnesses have categorically stated that the will

had been executed in their presence and the testator

signed the same while in sound disposing mind and in

possession of full physical and mental faculties.

The need to register the will after a lapse of 4

years arose as per the legal advice given to them.

That the will had been disclosed to the respondents

at the time of final obeisance ceremony of the

deceased in the year 1976, and then in the year 1978

in the proceedings before the forest authorities.

That the will was disclosed to the entire world at

the time of its registration on 11.9.1980.

According to him, there were no suspicious

circumstances attending the due execution of the

will and even if there were any such circumstances,

the same had been dispelled by the respondents by

leading cogent evidence.

It is well settled proposition of law that mode

of proving the will does not differ from that of

proving any other document except as to the special

requirement of attestation prescribed in the case of

a will by Section 63 of the Indian Succession Act,

1925. The onus to prove the will is on the

propounder and in the absence of suspicious

circumstances surrounding the execution of the will,

proof of testamentary capacity and proof of the

signature of the testator, as required by law, need

be sufficient to discharge the onus. Where there

are suspicious circumstances, the onus would again

be on the propounder to explain them to the

satisfaction of the court before the will can be

accepted as genuine. Proof in either case cannot be

mathematically precise and certain and should be one

of satisfaction of a prudent mind in such matters.

In case the person contesting the will alleges undue

influence, fraud or coercion, the onus will be on

him to prove the same. As to what are suspicious

circumstances have to be judged in the facts and

circumstances of each particular case. { For this

see H. Venkatachala Iyengar v. B.N. Thimmajamma &

Ors. [(1959) Supp.1 SCR 426] and the subsequent

judgments Ramachandra Rambux v. Champabai &

Ors.[(1964) 6 SCR 814]; Surendra Pal & Ors. v.

Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC

600]; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors.

[(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr.

LRs. & Ors. v. Chandrasekaran & Anr. [(2005) 1 SCC

280]

In the light of this settled position of the

law, we have to examine as to whether the will under

consideration had been duly executed and the

propounders of the will had dispelled the suspicious

circumstances surrounding the will.

Although the Trial Court as well as the High

Court recorded a finding of fact that the will had

been duly executed, but on the insistence of the

counsel for the parties we have gone through the

evidence of the scribe, two attesting witnesses and

hand-writing expert at length.

The propounder of the will has to show that the

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will was signed by the testator; that he was at the

relevant time in sound disposing state of mind; that

he understood the nature and effect of dispositions

and had put his signatures to the testament of his

own free will and that he had signed it in the

presence of the two witnesses who attested in his

presence and in the presence of each other. Once

these elements are established, the onus which rests

on the propounder is discharged. DW-2, the scribe,

in his testimony has categorically stated that the

will was scribed by him at the dictation of the

testator. The two attesting witnesses have deposed

that the testator had signed the will in their

presence while in sound disposing state of mind

after understanding the nature and effect of

dispositions made by him. That he signed the will

in their presence and they had signed the will in

his presence and in the presence of each other. In

cross-examination, the appellants failed to elicit

anything which could persuade us to disbelieve their

testimony. It has not been show that they were in

any way interested in the propounders of the will or

that on their asking they could have deposed falsely

in court. Their testimony inspires confidence. The

testimony of the Scribe (DW-2) and the two attesting

witnesses (DWs. \026 3 & 4) is fully corroborated by

the statement of hand-writing expert (DW-5). The

will runs into 6 pages. The testator had signed

each of the 6 pages. Hand-writing expert compared

the signatures of the testator with his admitted

signatures. He has opined that the signatures on

the will are that of the testator. In our view, the

will had been duly executed.

Coming to the suspicious circumstances

surrounding the will, it may be stated that although

the testator was 80 years of age at the time of the

execution of the will and he died after 15 days of

the execution of the will, the two attesting

witnesses and the scribe have categorically stated

that the testator was in sound state of health and

possessed his full physical and mental faculties.

Except that the deceased is 80 years of age and that

he died within 15 days of the execution of the will,

nothing has been brought on record to show that the

testator was not in good health or possessed of his

physical or mental faculties. From the cross-

examination of the scribe and the two attesting

witnesses, the appellants have failed to bring out

anything which could have put a doubt regarding the

physical or mental incapacity of the testator to

execute the will. Submission of the learned counsel

for the appellants that the testator had deprived

the other heirs of his property is not true. The

family properties had been partitioned in the year

1961. The shares which were given to Dharmaraja

Kadamba and Raviraja Kadamba were in possession of

tenants and vested in the State Government after

coming into force of Karnataka Land Reforms

(Amendment) Act, 1973 whereas the properties which

had been given to the daughters were in the personal

cultivation of the family. The testator while

executing the will bequeathed the properties which

had fallen to his share in the partition and which

he had inherited from his brother which were in his

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personal cultivation in favour of his two sons

Dharmaraja Kadamba and Raviraja Kadamba and gave the

right to receive compensation to other heirs of the

properties which were under the tenants and had

vested in the State Government. It is not a case

where the father had deprived his other children

totally from inheritance. Reasons for unequal

distribution have been given in the will itself.

This had been done by him to balance the equitable

distribution of the properties in favour of all his

children.

Counsel for the appellants argued that

Respondent No. 13 had taken prominent part in the

execution of the will as he was present in the house

at the time of the alleged execution of the will.

We do not find any merit in this submission. Apart

from establishing his presence in the house, no

other part is attributed to Respondent No. 13

regarding the execution of the will. Mere presence

in the house would not prove that he had taken

prominent part in the execution of the will.

Moreover, both the attesting witnesses have also

stated that the daughters were also present in the

house at the time of execution of the will. The

attesting witnesses were not questioned regarding

the presence of the daughters at the time of the

execution of the will in the cross-examination. The

presence of the daughters in the house at the time

of execution of the will itself dispels any doubt

about the so-called role which Respondent No. 13 had

played in the execution of the will. They have not

even stepped into the witness box to say as to what

sort of role was played by Respondent No. 13 in the

execution of the will.

Another suspicious circumstance which was

highlighted at great length by the learned counsel

for the appellant is that the Respondent Nos. 8-13

had failed to disclose the will for a period of 4

years in any of the earlier proceedings before the

revenue authorities and the forest authorities.

That the will was got registered after a lapse of 4

years and did not see the light of the day till the

initiation of proceedings in the present suit. We

do not find any substance in this submission as

well. Respondent No. 13 in his testimony has stated

that the contents of the will were disclosed in the

year 1976 at the time of final obeisance ceremony of

the testator. There is not much of cross-

examination of this witness on this point. None of

the appellants have stepped in the witness box.

Sukirthi Hegde (PW-1), husband of Appellant No. 3

i.e. grand-daughter of the testator, denies

knowledge about the disclosure of the contents of

the will at the time of final obeisance ceremony of

the testator. He has not even stated in his

testimony as to whether he was married to Appellant

No. 3 at the time of the death of the testator or

that he was present at the time of final obeisance

ceremony of the testator. There is nothing on the

record which could persuade us to disbelieve the

testimony of Raviraja Kadamba (DW-1). The case of

the respondents is that the will was disclosed in

the year 1978 as well during the proceedings pending

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before the forest authorities. Respondent No. 13

had moved an application before the forest

authorities for permission to cut the trees standing

on the land which had come to his share under the

will. It was contested by the appellants. A

settlement was arrived at and the three daughters

viz. Padmaraja Kadamba, Sridevi and Muttu @ Dejamma

(out of whom two are the appellants and 3rd died and

is now represented through her daughter) in a joint

statement filed before the authorities,

categorically stated that "we do not have any right

over the said land". It was also stated that after

the death of their father, they did not have any

objection for the grant of general certificate

authorizing Respondent No. 13 to cut the trees in

Survey No. 189. In view of this statement, it does

not lie in the mouth of the appellants to contend

that they had any right over the property. From

this it can be safely presumed that the statement

that they did not have any right in the land was

made by them only after knowing the contents of the

will. Both the attesting witnesses have stated that

the daughters were present at the time of the

execution of the will. This assertion of the two

attesting witnesses has not been controverted by

either of the daughters by appearing in the witness

box. From their presence in the house at the time

of the execution of the will, it can reasonably be

inferred that they had knowledge about the execution

of the will. Under these circumstances, it cannot

be held that the execution of the will had not been

brought to the notice of the appellants.

At the time of registration of the will on

11.9.1980, the scribe and the two attesting

witnesses had been produced before the Registrar.

Their statements were recorded and only after

satisfying himself, the Registrar registered the

will. The statements of the scribe and the two

attesting witnesses before the Registrar are in

harmony with the statements made by them in the

court. Another circumstances which was stressed

during the course of the arguments by the counsel

for the appellants was that although it was not

necessary to get the will registered, but still the

respondents got it registered after a period of 4

years only to lend authenticity to the will.

According to Respondent No. 13, the will was got

registered on the advice of a lawyer to enable them

to produce it before various authorities. Since we

have come to the conclusion that the daughters were

present at the time of execution of the will by the

testator and the execution of the same was disclosed

at the time of final obeisance ceremony of the

testator and that the will had also been brought to

the notice of the appellants in the year 1978 during

the proceedings before the forest authorities, the

registration of the will in the year 1980 by itself

does not cast a doubt regarding the execution of the

will in the year 1976.

For the reasons stated above, we do not find

any merit in this appeal and the same is dismissed

with no order as to costs.

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