Mahadevaiah and Others vs T.B. Nagaraju and Others

Ravi V. Malimath, J.—Aggrieved by the Judgment and decree of the first appellate Court in reversing the Judgment and decree of the trial court and thereby decreeing the suit of the plaintiff and holding that the plaintiff is entitled to 4/9th share and separate possession in the suit schedule properties, the defendants 1 and 2 have filed this appeal.

The parties would be referred to as per their rank before the trial court.

The case of the plaintiff is that he and the first defendant are the sons one Late Basappa. The second defendant is the wife of the 1st defendant. The 3rd defendant is the sister of the plaintiff and the first defendant. During the lifetime of Basappa the ancestral and the joint family properties except the suit schedule properties were divided amongst the plaintiff, the 1st defendant and Basappa. Even prior to the death of Basappa and thereafter the plaintiff has been residing in the eastern side of the house and the first defendant is residing in the western side of the said house. After the death of Basappa the 2nd plaintiff demanded half share in the suit schedule properties. The first defendant refused to partition the same. Hence, he filed the instant suit seeking a relief of partition and separate possession of half share in the suit schedule properties. The defendants entered appearance and denied the plaint averments. They set up a Will dated 21-10-1994 and contended that in terms thereof, the property has been willed in favour of the 2nd defendant. On these pleadings, the trial court framed the following Issues:-

"1. Whether plaintiff proves that suit schedule properties are ancestral joint family properties?

Whether plaintiff proves his joint possession and enjoyment over suit schedule properties?

Whether defendant proves that 2nd defendant is owner of suit schedule properties under registered Will dated 29.10.1994?

Is there are no cause of action for the same?

Is the suit not maintainable?

To what order or decree?"

The plaintiff examined himself as P.W.1 and examined yet another witness and got marked Exs.P-1 and 2. Defendant No. 1 was examined as D.W.1 and another witness was examined as D.W.2 and got marked Exs.D-1 to 9. Issues 1, 2 and 5 were held in the negative. Issues 3 and 4 were held in the affirmative. The suit was dismissed. Aggrieved by the same, the plaintiff filed a Regular Appeal before the I Additional District Judge, Tumakuru. The first appellate Court allowed the appeal. The Judgment and decree of the trial court was set aside. The suit of the plaintiff was decreed entitling him to 4/9th share and separate possession of the suit schedule properties. Aggrieved by the same, defendants 1 and 2 have filed this appeal.

By the order dated 7-4-2011 the appeal was admitted to consider the following substantial question law:-

"Whether the lower Appellate Court is justified in holding that Will is not duly executed by deceased Basappa in favour of Appellant No. 2?" 4. The learned counsel appearing for the appellants- defendants 1 and 2-Sri A.V. Gangadharappa contends that the first appellate Court committed an error in holding that the defendants have failed to prove the Will. That the appellate Court committed an error in going into the veracity of the signature of late Basappa to hold that it has been executed under suspicious circumstances. That it committed an error in holding that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. That even though the trial court has rightly held that the defendants have established the Will, the first appellate Court for unacceptable reasons has reversed the said finding by holding that the defendants have failed to establish the Will in terms of Ex.D-1. Hence he pleads that the substantial question law be answered in his favour and consequently to dismiss the suit. In support of his contentions he relies on the Judgment reported in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, to contend as to how and in what manner a Will has to be construed by the Court. Reliance is also placed on the Judgment of the Hon''ble Supreme Court in the case of Meenakshiammal (Dead) through LRs. and Others Vs. Chandrasekaran and Another, in order to show that when there is no specific plea that the Will was forged it was improper for the Court to hold that the Will was forged. Reliance was also placed on the Judgment of the learned Single Judge of this Court in the case of Sri J.T. Surappa and Another Vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, to contend that the Court has to pass through 5 steps of enquiry in order to test the veracity of the Will. Hence he pleads that the Judgments be applied to the facts of this case and to dismiss the suit.

On the other hand, the learned counsel for the respondents defends the impugned order. He contends that the trial court having committed an error in dismissing the suit, was appropriately rectified by the first appellate Court. That the first appellate Court having held that there was a suspicion in the execution of the Will has rightly held that the defendants have failed to establish the Will. Hence, he pleads that the Judgment and decree of the first appellate Court be upheld by dismissing the second appeal.

Heard learned counsels and examined the records.

The admitted facts are that in terms of Ex.D-4 dated 1-8-1981 the properties of the family were divided between the late Basappa, his son the plaintiff and his other son the first defendant. Certain properties mentioned in the Will were excluded from partition and it was specifically narrated that they belong to the said Basappa and that the said property does not constitute joint family property but his self acquired property. After partition, the parties have been enjoying the properties and their respective shares independently. On 21-10-1994 Ex.D-1 the gift deed was executed by Basappa before the Sub-Registrar, bequeathing the properties that were in his name in favour of the 2nd defendant namely, his daughter-in-law, that is, the wife of the first defendant.

The plea of the defendants is based on Ex.D-1. Their stand is that on execution of Ex.D-1 the properties belonging to the late Basappa were bequeathed by him in favour of the defendant No. 2. Therefore, the plaintiff would have no right, title or interest to claim the properties in view of the registered Will vide Ex.D-1. The trial court in the course of discussing the material evidence on record held that there is sufficient material to show that the Will has been admittedly executed in terms of Ex.D-1. There is a clear recital under what circumstances the Will has been executed in favour of defendant No. 2. That on more than one occasion, it is stated in the Will that after his death the 2nd defendant alone be the beneficiary of the properties mentioned in the Will. That there is also a mention in the Will with regard to the partition that has taken place and he that has chosen to bequeath all the properties falling to his share, in favour of his daughter-in-law the 2nd defendant. That the 2nd defendant was not a witness to the Will. The Will has been registered before the Sub-Registrar at Gubbi. For all these reasons, the trial court decreed the suit. On appeal, the first appellate Court was of the view that there are suspicious circumstances surrounding the Will. It was of the view that the signature of Basappa as narrated in the partition deed dated 1-8-1991 in terms of Exs.D-4 and D-5 the signature was shown only as Basappa. He has signed as Basappa. Whereas in Ex.D-1 namely, the Will executed by him dated 21-10-1994 executed 13 years thereafter he has signed as A. Basappa. Therefore, the first appellate Court found the same to be suspicious. The first appellate Court was of the view that there is a total change in the signature and therefore the same cannot be accepted. That this is a suspicious circumstance to disbelieve the Will. As a consequence to disbelieving the Will, the first appellate Court accorded a notional partition of the said properties and awarded 4/9th share to the plaintiff.

The contention of the appellant/defendant is that Ex.D-1 has been executed 13 years after the Exs.D-4 or D-5. That due to advancement of age there would be a change in the signature. That the Court is required to notice the advancement of age and the variation in the signature. However, the appellate Court was of the view that the same is not a mere alteration, but a totally new signature. When Exs.D-4 and D-5 have been signed as Basappa, the Will Ex.D-1 has been signed as A.Basappa. There is substantial material in the evidence of P.W.1 and as well as of P.W.2 to the extent that Basappa was also known as Allammanavar Basappa. Even if he was known as Allammnavar Basappa or A. Basappa, he had earlier signed only as Basappa. It is only in the subsequent document that he has signed as A. Basappa. Therefore whether he was also known as Allammnavar Basappa is of no consequence. Therefore even though Basappa was also known as Allammnavar Basappa, it fails to reason as to how the signature could totally change in the subsequent document.

The contention advanced by the appellants is that the advanced age should be reckoned and therefore the slight alteration in the signature should be accepted. The contention even if accepted would only amount to acceptance of the signature of a certain deterioration. The argument cannot be advanced to engulf a totally new signature of Basappa. It cannot be read as A. Basappa. It is not the case of the appellants that Basappa used to sign as Basappa as well as A. Basappa and therefore his two signatures were being affixed by the same person. The specific case of the appellant is that old age has made him to sign as A. Basappa. Such a contention cannot be accepted. Even if old age has to be considered, at the most one can say that the signature has become shaky, deteriorated, or that the signature is not properly readable and things of an identical nature. But when the entire signature is totally different by signing as A. Basappa when his earlier signature is only Basappa, I''am of the considered view that there is substantial suspicion so far as execution of the Will is concerned. The evidence and the material does not dispel the suspicion over the Will.

In the case reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Hon''ble Supreme Court was considering as to how a Will has to be proved. That a suspicious circumstances are required to be dispelled and unless the suspicion is satisfactorily discharged the Courts should be reluctant to treat the document as having been proved. That the burden of proving the Will would be on the person who relies on it. It is he who would have to remove any such legitimate doubt. The Supreme Court further held at para-20 held as follows:-

"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 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 pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter." In Meenakshiammal (Dead) through LRs. and Others Vs. Chandrasekaran and Another, it was held that the conscience of the Court has to be satisfied so as to dispel any suspicion or unnatural circumstances attached to a Will. Mere conjectures or suspicion cannot take the place of proof. So also a learned Single Judge of this Court in the case of Sri J.T. Surappa and Another Vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, has held at para-24 that an enquiry to be conducted with regard to the Will should be traversed on 5 points as narrated therein as follows:-

"(1) Whether the Will bears the signature or mark of the testator and is duly attested b two witnesses and whether any attesting witness is examined to prove the Will?

(2) Whether the natural heirs have been disinherited? If so, what is the reason?

(3) Whether the testator was in a sound state of mind at the time of executing the Will?

(4) Whether any suspicious circumstances exist surrounding the execution of the Will?

(5) Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Evidence Act?"

On applying the aforesaid Judgments of the Supreme Court as well as the judgment of the learned Single Judge, I have no hesitation to hold that the Will has not been proved. The suspicious circumstance has not been dispelled. The burden of removing the suspicion has not been dispelled by the defendants. The signatures are at variance with one another. It is not a case of an alteration. They are two different signatures. It cannot be said to be a deterioration. Therefore, the suspicion is well founded. It has not been dispelled.

Under these circumstances, I''am of the considered view that the reasoning adopted by the trial court has been rightly interfered with, by the first appellate Court. The trial court was swayed with the fact that only because on the document his signature has been established, the same is appropriate. The first appellate Court having considered the reasoning assigned by the trial court has rightly reversed the same by assigning appropriate reasons for differing with the same. This Court on examination of Exs.D-1 and 4 and 5 having held that the signature of the testator Mr. Basappa on Ex.D-1 is far different from his signature as in Exs.D-4 and 5, as a consequence whereof the first appellate Court has rightly held that the Will has not been proved has allotted the shares to the respective parties.

Having held that the property is the self acquired property of Basappa and not the ancestral property the allotment of shares is incorrect. The same requires to be divided between the 3 remaining heirs namely, one son the plaintiff, the other son the defendant No. 1 and the daughter, defendant No. 3. Therefore each one of them would be entitled to 1/3rd share in the suit schedule property. Consequently, the substantial question law is answered by holding that the lower appellate Court was justified in holding that the Will has not been duly executed by the deceased Basappa in favour of appellant No. 2. Consequently, the Judgment and decree of the first appellate Court is modified. The plaintiff, defendant No. 1 and defendant No. 3 are entitled to 1/3rd share each in the suit schedule properties. The rest of the order of the 1st appellate court is affirmed.

Ordered accordingly.