Lakshmi Nagaraj vs A. Prasad Rao and Others

P.D. Waingankar, J.—1. Being aggrieved by the dismissal of O.S. No. 3207/2000 by judgment and decree dated 25.04.2009 on the file of XX Addl. City Civil Judge, Bangalore, this appeal is preferred by the appellant/plaintiff.

The parties to this appeal are referred to their ranks before the trial court:-

The appellant is referred to as ''plaintiff and the respondent Nos. 1 to 4 as ''defendants Nos. 1 to 4''. The plaintiff is the daughter of one A. Hanumantha Rao, defendant Nos. 1 and 2 are the sons, defendant No. 3 is another daughter and defendant No. 4 is wife of A. Hanumantha Rao. The plaintiff filed a suit for partition and separate possession of her 1/4th share in the suit schedule properties by metes and bounds. It is contended that the plaint schedule property is self-acquired property of her father Late A. Hanumantha Rao, who was working as an Electrical Engineer in SIEMENS India Limited at Bombay. On behalf of the defendants, defendant No. 2 filed a written statement, whereunder he admitted that the schedule property is the self-acquired property of their father A. Hanumantha Rao and that he bequeathed the schedule property by a registered sale deed dated 11.1.1988, wherein his father created a restricted interest in favour of his mother-4th defendant who should enjoy the property during her life time and after her death, the property should vest absolutely with defendant No. 2. It is also contended that his father executed a Will in his favour in the presence of two witnesses viz., G.K. Raman and one Raghunath and therefore by virtue of the Will executed by his father, he became the absolute owner of the schedule property and as such, he sought for dismissal of the suit.

The trial court framed the following issues:-

Whether the plaintiff proves that the Will dated 11.1.1988 executed by late A. Hanumantha Rao in respect of suit schedule property is not valid and enforceable?

Whether the suit is barred by limitation?

Whether the plaintiff is entitled to 1/4th share in the suit schedule property?

To what reliefs, the plaintiff is entitled?

What order or decree?

After framing the issues, the plaintiff in order to prove her case for partition, adduced her evidence as PW-1, she examined her friend one K.S. Sunithi as PW-2 and her husband as PW-3, Exs-P1 to P5 were marked. On behalf of the defendants, defendant No. 2 adduced his evidence as DW-1, the attesting witnesses to the Will G.K. Raman and Raghunath were examined as DWs-2 and 3. Exs-D1 and D2 were marked. The trial court on appreciation of the evidence held that the Will dated 11.1.1988 executed by deceased A. Hanumantha Rao has been duly proved which resulted in the dismissal of the suit filed by the plaintiff by judgment and decree dated 25.4.2009. Challenging the judgment and decree, this appeal is preferred by the appellant-plaintiff.

I have heard both the learned counsel appearing for the appellant-plaintiff and the respondent No. 2-defendant No. 2.

The submission of the learned counsel for the appellant-plaintiff is that the Will in question marked as Ex-D2 is not a Will executed by the father of the plaintiff Late Sri. A. Hanumantha Rao. It has been fabricated and concocted by defendant No. 2 and defendant No. 4-mother of the plaintiff just to knock off the schedule property. It is further submitted that Late A. Hanumantha Rao-father of the plaintiff, who died on 11.6.1988 had a paralytic stroke one year earlier to the date of the alleged Will, that he was admitted in Maiya Nursing Home for months together and therefore he was not in a sound disposing state of mind on the alleged date of execution of the Will. It is also contended that the alleged Will is shrouded by suspicious circumstances which were very much brought on record during the course of evidence, but the trial court ignoring all these suspicious circumstances has wrongly held that the Will has been duly proved and thereby dismissed the suit. Hence, the learned counsel for the appellant sought to set-aside the judgment and decree holding that the Will is not proved and to grant the partition of the schedule property as prayed for by the plaintiff.

The learned counsel for the appellant relied upon the following decisions in support of his arguments:-

a. , 1994(3) SCC 135 (BHAGWAN KAUR W/O. BACHAN SINGH V. KARTAR KAUR W/O. BACHAN SINGH AND OTHERS in Head Note, it is held as under:-

Succession Act, 1925-S. 63-Evidence Act, 1872-S. 68-Registered will-Due execution of-Proof - Statements made by two attesting witnesses in examination-in-chief that contents of the will were read over to the testator who after admitting the same to be correct had put his signature in their presence and they had put their signatures in his presence-But the statements contradicted by the witnesses in cross examination-Endorsement made by Sub-Registrar that endorsement was made in his presence and in the presence of the witnesses and that the witnesses signed the endorsement in the presence of the testator-No provision made in the will for two widows (appellant and respondent) of the testator and the entire estate vested under the will in the legatee, brother''s son of the respondent - widow - Held, evidence of the witnesses not acceptable and as such due execution not proved - Endorsement made by the Sub-registrar does not satisfy the requirements of S. 63 of Succession Act and does not reach up to the level of proof required under S. 68 of Evidence Act and hence mere registration of the will of no consequence-Having regard to the suspicious circumstances, High Court erred in disturbing the finding of fact against due execution of the will arrived at by trial court and first appellate court-Will-Civil Procedure Code, 1908, S. 100.

b. , 2010 (5) SCC 274 (S.R. SRINIVASA AND OTHERS V. S. PADMAVATHAMMA, in head note ''C'', it is held as under:

Hindu Succession Act, 1956 - Ss. 30, 15 and Sch. - Will - Proof of execution of - Examination of scribe of Will who had not signed the Will with intention to attest, held, not sufficient to satisfy the statutory requirement of examination of at least one attesting witness for proving the Will - Succession Act, 1925 - S. 63 - Evidence Act, 1872-S. 68.

c. , AIR 2009 SC 1389 (LALITABEN JAYANTHILAL POPAT V. PRAGNABEN JAMNADAS KATARIA & ORS. in Head Note as under:-

Succession Act (39 of 1925), S. 63(c) - Will - Execution - Proof - Only one attesting witness examined - Who typed Will not known - Who scribed Will also not known - Will produced from custody of one attesting witness - How he came in custody of Will not explained - He also stated that testator put signature in his presence, however, at that point of time other attesting witness had not put his signature - It has, therefore, not been proved that both attesting witnesses either attested Will in presence of each other or testator had acknowledged his signature in presence of other witnesses - Large number of suspicious circumstances - Held that execution of Will was not proved.

d. , AIR 2007 SC 2219 (APOLINE D''SOUZA V. JOHN D''SOUZA, in head note A and B it is held as under:

A. Succession Act (39 of 1925), S. 63 - Evidence Act (1 of 1872), S. 68 - Will - Execution of - Suspicious circumstances - Testatrix 96 years old lady - Scribe of Will not known - Attesting witness not known to testatrix and stated that Will was not drafted before her - She had only proved her signature - As per said witness document was handwritten one - Whereas Original Will is typed - No evidence to show that contents of Will were read over and explained to testatrix - Several cuttings and over-writings in Will - Establishing suspicious circumstance - Due execution of Will, cannot be said to be proved.

B. Succession Act (39 of 1925), S. 63 - Evidence Act (1 of 1872), S. 68 - Execution of Will - Suspicious circumstances - Has to be removed by propounder of Will - Having not done so, execution of Will, is not proved - Order declining to grant letters of administration, proper.

e. , (1992) 2 SCC 507, (GURO (SMT) V. ATMA SINGH AND OTHERS, it is held as under:

Will - Genuineness - Proof of - Suspicious circumstances - Burden on propounder to remove the suspicion - Held on facts, burden not discharged and Will not proved to be a genuine document - High Court not justified in interfering with findings of fact of the first appellate court based on proper appreciation of evidence - Succession Act, 1925, S. 63 - Civil Procedure code, 1908, S. 100.

On the other hand, the counsel for the respondents-defendants would argue that A. Hanumantha Rao after due deliberation and taking into consideration all the factors duly executed the Will dated 11.1.1988 marked as Ex-D2 in presence of the two witnesses viz., G.K. Raman and A. Raghunath, that he was hale and healthy and in a sound disposing state of mind, that though he had paralytic stroke, he recovered from the paralytic stroke, executed a Will as per Ex-D2 and that the Will is not shrouded by suspicious circumstances as alleged by the plaintiff, the Will was read over on 13th day ceremony of their father''s ceremony in the presence of the plaintiff, all other children and the relatives, the plaintiff was aware of the execution of the Will way back in the month of June 1988 and therefore the suit filed by her in the year 2000 after about 12 years from the knowledge of the Will is barred by time, the trial court on proper appreciation of evidence has rightly recorded a finding that the Will has been duly proved by defendant No. 2 and on the strength of the Will, defendant No. 2 became the owner of the schedule property, which resulted in the dismissal of the suit for partition, there is no merit in the appeal and hence it is liable to be dismissed.

The learned Counsel for respondent No. 2 relied upon the following decisions in support of his submission:-

a. , (2005) 2 SCC 784 (SRIDEVI AND OTHERS vs. JAYARAJA SHETTY AND OTHERS, wherein it is held as under:-

Will - Onus of proof - On propounder - Proof of testamentary capacity and signature of testator sufficient to discharge the onus in absence of any suspicious circumstances - Onus to explain suspicious circumstances, if any, also on the propounder - But onus to establish allegations of undue influence, fraud or coercion on the persons making such allegations - Proof in either case should be one of satisfaction of a prudent man - On facts held, Will had been duly executed and propounder dispelled the suspicious circumstances - Succession Act, 1925, S. 63.

b. , (2003) 8 SCC 537 (RAMABAI PADMAKAR PATIL vs. RUKMINIBAI VISHNU VEKHANDE AND OTHERS) in head note ''B'', it is held as under:

Succession Act, 1925 - S. 63 - If one of the attesting witnesses is examined and no infirmity found in his testimony, non-examination of the person who had typed the Will or the advocate who was present at the time of preparation or registration of the Will, cannot be a ground to discard the Will - Evidence Act, 1872, S. 68 proviso.

Having heard the submission made by both the learned counsel and on perusal of the entire material on record, the following points would arise for my consideration:-

Whether the finding recorded by the court below that the execution of the Will has been duly proved by defendant No. 2 is proper?

Whether the judgment and decree passed by the court below call for interference?

Re-Point No. 1:-

The fact that the schedule property was self-acquired property of deceased A. Hanumantha Rao is not in dispute. Relationship of the parties to the suit is also not in dispute. Defendant Nos. 1 and 2 are the sons and defendant No. 4 is the wife and plaintiff and defendant No. 3 are the daughters of deceased A. Hanumantha Rao. It is not in dispute that deceased A. Hanumantha Rao died on 11.6.1988 as evident from Ex-P2-death certificate. The plaintiff being one of the daughters is seeking partition of her 1/4th share in the schedule property on the ground that it is self-acquired property of her father. It is the case of the defendants that though it is self-acquired property of Late A. Hanumantha Rao, he bequeathed the property in favour of defendant No. 2-his second son by executing a Will dated 11.1.1988 marked as Ex-D2 and therefore by virtue of the Will, defendant No. 2 succeeded to the schedule property and became the absolute owner. Since defendant No. 2 is the profounder of the Will, it is for him to prove the due execution of the Will by Late Hanumantha Rao his father. It is for him to prove the testamentary capacity i.e., capacity to comprehend the nature and consequences of his act at the time of execution of the Will. Defendant No. 2 the beneficiary under the Will who has been examined as DW-1 went on record to depose that he came to know about the execution of the Will Ex-D2 by his father on 13th day ceremony of his father when it was read over by Dr. K. Ramamurthy. The original Will is marked as Ex-D2. It shows that on 11.1.1988 it was executed by the testator and on 13.1.1988 it was registered in the office of the Sub-Registrar at Rajajinagar, Bangalore. As per Section 63 of the India Succession Act, a Will'' has to be proved by examining one of the attesting witnesses and in conformity with Section 68 of the Indian Evidence Act. In order to prove the due execution of the Will by the testator, the defendants have examined G.K. Raman and Raghunath-attestors to the Will as DW-2 and 3. Both of them have deposed that the testator A. Hanumantha Rao did possess good health on the date of the execution of the Will, They have stated that both of them went alongwith testator A. Hanumantha Rao on 11.1.1988 to the office of Lawyer R. Gopal Krishna, who drafted the Will and it was read over in their presence. They have further deposed that after the Will was read over to the testator in their presence, the testator A. Hanumantha Rao put his signature on the Will and they being the attesting witnesses have put their signatures to the Will in the presence of the testator. They have also identified the signature of the testator on the Will Ex-D2 at Ex-D2(b) to D2(e). They have also identified the signature of DW-2 at Ex-D2(a) and that of DW-3 another witness at Ex-D2(F). They have made it very clear that at the time of execution of the Will, the testator was mentally sound, he was in a position to know the nature and consequences of his acts though he had paralytic stroke one year prior to the execution of the Will. Their evidence would further go to show that on 13.1.1988, the Will was registered in the office of the Sub-Registrar, Rajajinagar before whom the testator admitted for having executed the Will on 11.1.1988 in the presence of DW-2 and DW-3 the attesting witnesses. As per the contents of the Will Ex-D2, after the death of the testator, the schedule property should be enjoyed by his wife the 4th defendant Janakamma during her life time and after her death, the schedule property shown in the Will should go to defendant No. 2 absolutely.

The learned counsel for the appellant-plaintiff vehemently argued that the Will is surrounded by suspicious circumstances. It is an admitted proposition of law that if a Will is surrounded or shrouded by suspicious circumstances, it is for the profounder of the Will to dispel the suspicious circumstances. The Will is a document executed by a person who is no more in this world and therefore law requires that it has to be strictly proved. The suspicious circumstances according to the counsel for the appellant-plaintiff are as follows:-

a. That the testator was suffering from Cerebral Thrombosis with Broncho Pneumonia and he had no testamentary capacity to execute the Will.

b. The Will excludes the close relatives of the testator.

c. The interest of the wife of the testator is not taken care of and no provision is made in the Will to other children.

d. The witnesses to the Will are relatives. One of the testators has deposed that the Will was hand written though it is typed and that defendant No. 2 failed to dispel this suspicious circumstance surrounding the Will and hence defendant No. 2 failed to prove the due execution of the Will.

e. That the defendant No. 2 got entered his name to the property immediately after the death of testator though under the Will property ought to have been entered in the name of 4th defendant-wife of testator.

It is true that the testator was suffering from Cerebral Thrombosis with Broncho Pneumonia, for which, he was admitted to Maiya Nursing Home on 8.5.1988 and that he expired on 11.6.1988. The Will was executed on 11.1.1988 about 4 to 5 months prior to his admission to Maiya Nursing Home. There is no evidence, much less, acceptable evidence to show that as on the date of execution of the Will, he had Cerebral Thrombosis with Broncho Pneumonia. The evidence on record would go to show that he had paralytic attack way back in the year 1969 and he recovered from the paralytic attack. The medical evidence on record does not disclose that he was suffering from Cerebral Thrombosis with Broncho Pneumonia as on the date of execution of the Will. Moreover, when there is medical evidence and the eye-witnesses account, the eyewitness'' account should always prevail over the medical evidence. DWs-2 and 3 were the witnesses to the execution of the Will and both of them have categorically stated that the testator was in a sound disposing state of mind as on the date of the execution of the Will. It was prepared by Advocate R. Gopal Krishna as per his instructions. The contents of the Will were read over to him and after knowing the contents, he put his signature on the Will in their presence.

Another suspicious circumstance according to the appellant - plaintiff is that the testator has not made provision for the plaintiff, defendant Nos. 1 and 3 in the Will. But if we look at the contents of the Will, the testator has assigned reasons as to why he has excluded them from giving share in the schedule property. It is stated in the Will that the plaintiff and defendant No. 3 his two daughters are happily married and they are living a happy marital life with their husband. He has also stated that he has given his properties at Bombay where he was working as an Electrical Engineer to defendant No. 1 his first son. Sofar as defendant No. 4 his wife is concerned, he has given life interest to her in the schedule property. Thus the reasons assigned for exclusion of the plaintiff and other two children seems to be proper reasons. Since the testator has assigned proper reasons, their exclusion cannot be called as suspicious circumstance surrounding the Will.

The other suspicious circumstance according to the appellant - plaintiff is that both the attesting witnesses are relatives and therefore their evidence cannot be relied upon. Of course, they are relatives of the defendants and equally they are relatives of the plaintiff. Moreover, they are well educated persons. They have no animosity against the plaintiff so as to give false evidence. Usually, the relatives are asked to be the witnesses to the Will. They are not benefited in any way by attesting the Will. In the absence of some motive attributed against DW-2 and DW-3, merely because they are relatives of the testator, their evidence cannot be discarded or doubted, more so, for the reason that they are also relatives of the plaintiff as well.

Another suspicious circumstance as canvassed by the learned counsel for the appellant-plaintiff is that immediately after the death of the testator, defendant No. 2 got entered his name to the property, though under the Will, after the death of the testator, the property should go to his wife-defendant No. 4, who shall enjoy the same during her life time and it is only after her death, the property should go to defendant No. 2. It has come in the evidence that after the death of the testator, the property was be entered in the name of the 4th defendant-wife of the testator on the strength of the Will Ex-D2 and immediately thereafter, the property came to be entered in the name of defendant No. 2. It is true that during the life time of defendant No. 4 - the wife of the testator, the property came to be entered in the name of defendant No. 2. After all, it is defendant No. 4 the wife of the testator to object for the same. She having not objected to enter the property in the name of her son defendant No. 2, it is not open for the appellant-plaintiff to contend that immediately after the death of the testator, defendant No. 2 got entered his name in the property and therefore, it is a suspicious circumstance. Ultimately, the property should absolutely vest in defendant No. 2 as per the wish of the testator. Thus the defendant No. 2 being the propounder of the Will dispelled all the suspicious circumstances. Further it is borne out from the evidence that the Will was read over by Dr. Ramamurthy-the brother of the testator on 13th day ceremony, meaning thereby, all the relatives including the plaintiff and defendants were made aware of the existence of the Will executed by deceased on the 13th day of the death of the deceased on 11.6.1988. The appellant-plaintiff herself has admitted in her evidence that she came to know about the Will one year after the death of her father i.e., somewhere in 1989. But she has not taken steps to challenge the Will for more than 10 years. She filed a suit in the year 2000, just to take a chance and nothing more than that. Moreover, defendant No. 2 has proved the due execution of the Will by his father Late A. Hanumantha Rao as per Ex-D2. It is further fortified by registration of the Will on 13.1.1988 before the Sub-Registrar, Rajajinagar before whom the testator admitted the execution of the Will on 11.1.1988 in the presence of DWs-2 and 3. Though the plaintiff examined Sunithi, her friend as PW-2, her evidence does not inspire the confidence of the Court, since she has stated that her affidavit in the form of evidence was prepared at the instance of the plaintiff and she signed the affidavit in the office of the lawyer of the appellant-plaintiff. Even otherwise, her evidence is not of much importance, since she is a stranger to the family of defendants and the plaintiff. PW-3 is none other than the husband of PW-1, who is an interested witness. The Will is established as required under Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act. Thus on proper appreciation of evidence both oral and documentary, the court below has rightly recorded a finding that defendant No. 2 has been able to establish the due execution of the Will. On my re-appreciation of evidence, I am in full agreement with the conclusion reached by the court below. Since defendant No. 2 has proved due execution of the Will by his father as per Ex-D2 by satisfactory evidence, he succeeded to the schedule property on the strength of the Will and became the owner. As such, the suit filed by the plaintiff for partition of the schedule property is not maintainable. Rightly the suit came to be dismissed by the impugned judgment and decree. I do not find any merit in the appeal. Hence, the appeal is dismissed.