Nagarathnamma vs Mahadevamma and Others

B.V. Nagarathna, J—The appellant is one of the legal representatives of the defendant-Smt. Siddagangamma in O.S. No. 145/2001. Respondents herein had filed the said suit seeking partition and separate possession of the suit properties. During the pendency of the suit, the defendant-Siddagangamma, who is the mother-in-law of respondent No. 1 died. The appellant herein was brought on record as her legal representative. The trial Court by judgment and decree dated 22.01.2007 held that the suit schedule property was a separate property of Siddagangamma and that the plaintiffs 2 & 3 were jointly entitled to half share, while the appellant herein was entitled to the other half share and that plaintiff No. 1, mother of plaintiff Nos. 2 and 3 was not entitled to any share in the suit schedule property. Being aggrieved by the judgment and decree, the plaintiffs filed R.A. No. 48/2007 before the Senior Civil Judge & J.M.F.C. at Tiptur. The first appellate Court dismissed the appeal. Assailing the concurrent findings of the Courts below, the legal representative of the deceased-defendant has filed this second appeal.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.

The first plaintiff is the wife of Late Renukamurthy. Plaintiff Nos. 2 and 3 are their children. Late Renukamurthy and the appellant herein were the children of Siddagangamma and Nanjundappa. On the demise of Renukamurthy, the plaintiffs filed a suit against Siddagangamma seeking partition of the suit schedule property on the premise that the said property was joint family property, although it was purchased in the name of Siddagangamma, the original defendant. It was contended that on the demise of Nanjundappa succession to the said property had opened and the plaintiffs being the legal representatives of Renukamurthy, son of Nanjundappa was entitled to half share in the said property.

On receipt of the suit summons and notices from the trial court, the original defendant appeared and filed her written statement contending that the suit schedule property was her absolute property; that the said property was not a joint family or ancestral property; that the suit against her was not maintainable as during her life time there could be no division of the property as demanded by the plaintiffs; that the plaintiffs had not succeeded to the suit schedule property on the demise of Nanjundappa, as the said property belonged to her and that the plaintiffs had no right, title or interest in the said property and that there was no cause of action to file the suit. It was also contended that originally the property belonged to one Abdul Sattar Saab son of Dada Miyan Saab, he had sold the property under a registered sale deed dated 06.11.1960 in favour of Siddagangamma for a valuable consideration; that since then, she was in possession and enjoyment of the suit property and her name was mutated in the revenue records. It was also contended that the other properties of Nanjundappa had not been added to the plaint schedule; that there could not be any partial partition of the properties. It was contended that the plaintiffs had no locus standi to file the suit. She therefore, sought dismissal of the suit.

On the basis of the rival pleadings, the following issues were framed by the trial Court:

(i) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of plaintiffs and defendants?

(ii) Whether the defendant proves the suit schedule properties are herself acquired properties?

(iii) Whether the plaintiffs are entitled for 3/4th share in the suit schedule properties?

(iv) What order or decree?

During the pendency of the suit, the original defendant-Siddagangamma, died and following additional issues were added on 29.11.2006 and 09.01.2007 respectively.

Additional issue dated 29.11.2006:

(i) Whether defendant proves that Siddagangamma has executed Will in favour of Nagarathnamma as alleged in the written statement?

Additional issue dated 09.01.2007:

(i) Whether the suit is bad for partial partition?

In support of their case, plaintiffs let in evidence of two witnesses as P.Ws. 1 and 2 and produced seven documents, which were marked as Exs. P1 to P7; while the appellant herein who was substituted as a legal representative of deceased-Siddagangamma, let in her evidence as DW 1 and produced evidence of two other persons as DWs 2 and 3. She produced four documents, which were marked as Exs. D1 to D4.

On the basis of the said evidence, the trial Court held issue No. 1 and additional issue Nos. 1 and 2 in the negative, issue Nos. 2 in the affirmative, issue No. 3 partly in the affirmative and issue No. 4 as per final order and partly decreed the suit, holding that the plaintiff Nos. 2 and 3 were jointly entitled to half share each, in the suit schedule property and defendant was entitled to the other half share and that first plaintiff was not entitled to any share in the suit property.

At this stage, it may be noted that plaintiffs accepted the judgment and decree of the trial Court and did not appeal against the same. But the defendant i.e., the legal representative of the original defendant, the daughter, filed R.A. No. 48/2007 on the file of Senior Civil Judge & JMFC at Tiptur.

In the Regular Appeal, the first appellate Court raised the following points for its consideration:

(i) Whether the appellant proves that the trial Court is not justified in refusing to accept the Will and the judgment and decree of the trial Court is perverse, capricious and opposed to law and existing factual circumstance of this case, does it need interference by this Court?

(ii) What Order?

After hearing the parties, it held the points in favour of the respondents and dismissed the appeal. Being aggrieved by the judgment and decree of the Courts below and also the concurrent findings therein, the appellant has preferred this second appeal.

I have heard Smt. Varsha R. Iyengar, learned counsel, on behalf of Sri S.N. Bhat, learned counsel, appearing for the appellant.

At the outset, she submitted that there is no dispute with regard to the relationship between the parties. She also brought to my notice the fact that though the plaintiffs had filed a suit seeking partition and separate possession of the suit property on the premise that it was a joint family or ancestral property of Nanjundappa and that on the demise of their son Renukamurthy, as his legal representatives they were entitled to a share in the said property, the Courts below have concurrently held that the suit schedule property was not the joint family or ancestral property of Nanjundappa and that in fact, it was separate property of Siddagangamma. She pointed out that proceeding on the basis that it was the separate property of Siddagangamma, the Courts below have applied the rules of succession which apply on the demise of a female hindu. In that context, she pointed out that Siddagangamma as the absolute owner of the suit property had not died intestate but had executed a Will dated 04.09.2000, which was registered on 05.09.2000 and that the Will was attested by two persons as the attesting witnesses; that on the demise of Siddagangamma, when the appellant was brought on record, she contended that on the basis of the Will of her mother she was the sole legatee and was entitled to succeed to the suit schedule property and that the plaintiffs were not entitled to any right, title or interest in the same.

Elaborating the said contention, she drew my attention to the fact that in support of the appellant herein, DW 2-R.T. Chandraiah one of the attesting witnesses had deposed in favour of the defendant with regard to the execution as well as the validity of the Will and the other witness who deposed in favour of the appellant was DW 3. She contended that the Courts below were not right in holding that the Will was not proved in accordance with law or that the execution of the Will was shrouded in suspicious circumstances. According to her merely because, one of the attesting witnesses viz., Siddananjappa had deposed as PW 2 in favour of the plaintiffs, it could not be held that the execution of the Will was shrouded in suspicious circumstances or for that matter it was not valid in the eye of law. She also contended that the appreciation of the Courts below with regard to the evidence let in by the parties on the due execution of the Will as also on the validity of the same has not been proper and that the substantial questions of law would arise in the matter.

She also contended that the standard of proof required for proof of a Will is quite distinct from the standard required for proof of any other document and that the Courts below while appreciating the evidence on record have not taken into consideration the aspects, which are relevant to be considered in the matter of proof of Will. She also contended that when a Will is put forward by a party, the same carries with it certain presumptions with regard to its validity and that it is only after evidence is let in and on the proper appreciation of the same, could the Court come to a conclusion as to whether the Will is valid or not; that in the instant case, both the Courts below have failed to appreciate the evidence regarding proof of Will in question in its proper perspective and therefore, there is failure of justice in the instant case. Relying on certain decisions, she contended that this is a fit case where substantial questions of law would arise, which would merit admission of the appeal and consideration of the case in detail.

Having heard the learned counsel for the appellant, it is noted that the original defendant-Siddagangamma was the wife of Nanjundappa. They had two children viz., Renukamurthy since deceased, and the appellant, Nagarathnamma. Renukamurthy''s wife is the first plaintiff, Mahadevamama. They had two children viz., Priyadarshini and Shruthi who are plaintiff Nos. 2 and 3. The plaintiffs filed a suit seeking partition and separate possession of the suit schedule properties by contending that the said properties were the joint family/ancestral properties of the family and that on the demise of Nanjundappa and Renukamurthy, the plaintiffs were entitled to a share in the said properties. In response to the said contention, the wife of Nanjundappa, the original defendant, Siddagangamma in her written statement contended that the suit schedule properties were not either joint family or ancestral properties and that they were her self-acquired properties, which she had purchased under a registered sale deed and her name had been mutated in the revenue records. Therefore, it was contended that the suit against her was not maintainable during her lifetime.

The Trial Court while appreciating the evidence on this aspect held that the suit schedule properties were self-acquired properties of the original defendant-Siddagangamma. But the trial Court did not end the matter at that stage. Since, Siddagangamma had died during the pendency of the proceedings, succession to the suit schedule properties, which were held to be the absolute properties of Siddagangamma was taken up for consideration. It is in that context, that the appellant herein propounded the Will of late Siddagangamma dated 04.09.2000 registered on 05.09.2000. It is in the context of appreciation of the evidence of the propounder with regard to the validity of the Will, the trial Court held that the Will was not proved in accordance with law as the execution of the Will was surrounded by suspicious circumstances and therefore, held that the succession could not be on the basis of the said testament. By applying the rules of succession under the Hindu Succession Act, 1956 it granted half share of the suit schedule properties to the appellant herein and other half share jointly to plaintiff Nos. 1 and 2, while not granting any share to first plaintiff.

The fact that the suit schedule properties were held to be the separate properties of the original defendant-Siddagangamma as held by the trial Court has been accepted by both the sides. In fact, the plaintiffs did not file an appeal against that finding. The appellant herein who was the defendant who also pleaded to the same effect that the suit schedule properties were the self acquired properties of her mother, original defendant, also did not challenge that finding. Rather on the basis of that finding, the appellant herein had put forth the Will of Siddagangamma dated 04.09.2000 registered on 05.09.2000. Therefore, the matter has proceeded on the basis that the suit schedule properties belonged to the original defendant-Siddagangamma. Thus, there was no question of having a partition of the said properties on the basis that they were joint family/ancestral properties. As Siddagangamma died during the pendency of the suit, the trial Court took up for consideration the Will propounded by the appellant herein. While considering the evidence put forth by the appellant herein with regard to the proof of Will and appreciating the same it held, that the Will had not been proved, as it was surrounded by suspicious circumstances and therefore, applied the rules of succession to divide the properties between the parties. At this stage, it may also be mentioned that the fact that no share was given to the first plaintiff while dividing the properties by way of intestate succession, has also not been appealed against by the said plaintiff.

Be that as it may, the real controversy here is, as to whether, the Will had been proved in accordance with law. As already noted the trial Court did not accept the validity of the Will, which aspect was a subject matter of challenge in the regular appeal. The first appellate Court, while dismissing the appeal, has affirmed the findings of the trial Court, by holding that the Will was surrounded by suspicious circumstances and had not proved in accordance with law. The concurrent findings are assailed in this appeal as noted in the detailed submissions, recorded above. In the matter of proof of Will, the most celebrated judgment of the Hon''ble Supreme Court is the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 : (1959) 1 SCR 426 Supp needs to be referred be to. In that case while considering Sections 67, 63, 45 and 47 of the Evidence Act, 1872 and Sections 59 and 63 of the Indian Succession Act, 1925 it has opined as under:

"What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters."

In fact, the legal principles with regard to the proof of the Will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the Will must examine one or more attesting witnesses and the onus is based on the propounder to remove all suspicious circumstances with regard to the execution of the Will. In the above noted case, the Hon''ble Supreme Court has stated that the following three aspects must be proved by a propounder:-

"(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and

(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to be discharged on proof of the essential facts indicated therein."

In fact in two other decisions of Hon''ble Supreme Court it has been held as under:

In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, AIR 1977 SC 74 : (1977) 1 SCC 369 : (1977) 1 SCR 925 , the Hon''ble Supreme Court pointed out that when a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court''s conscience and then the true question which arises for consideration is whether the evidence let in by the propounder of the will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstances surrounding the making of the will.

In Bharpur Singh and Others Vs. Shamsher Singh, AIR 2009 SC 1766 : (2009) 1 JT 590 : (2009) 1 SCALE 481 : (2009) 3 SCC 687 : (2009) AIRSCW 1338 , Hon''ble Supreme Court has narrated a few suspicious circumstance as being illustrative but not exhaustive in the following manner:-

"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

(ii) The condition of the testator''s mind may be very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the testator''s free will and mind,

(v) The propounder takes a prominent part in the execution of the will,

(vi) The testator used to sign blank papers.

The will did not see the light of the day for long,

(vii) Incorrect recitals of essential facts.

The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with."

Therefore, in light of the aforesaid dicta of the Hon''ble Supreme Court, the appreciation of the evidence of the Courts below on the validity of the Will would have to be considered, more particularly, with regard to the answer given to additional issue No. 1.

Ex. D1 is the original Will dated 04.09.2000, which was registered on 05.09.2000. The appellant was the defendant, the propounder of the Will. In order to prove the said document she had examined one of the attestors viz., R.T. Chandraiah as DW 2. He had stated that the Will was written in the presence of Siddagangamma as per her instructions she had signed the pages of the said Will in his presence as well as that of the scribe; that he had signed the Will as an attesting witness and the scribe, Shivanna had also signed the Will. Subsequently, the Will was registered.

DW 2 had stated as under in his cross-examination:

On the basis of the aforesaid deposition in the cross-examination, the trial Court held that there was no intimation given to DW 2 to travel from Chikkanayakanahalli to Tiptur for the purpose of attesting the Will; that DW 2 was in Tiptur for the purpose of processing his old age pension application and at that time, Siddagangamma, the testator met him and requested him to accompany her to the Sub-Registrar''s Office for execution of the Will. The trial Court has noted that the above admission of DW 2 is contrary to his earlier version. The trial Court has also noted that the testator was suffering from paralysis. Be that as it may, the validity of the Will has been considered in detail by the trial Court. The trial Court has also noted that the propounder of the Will and the sole legatee, appellant herein was also present along with the testator. That by itself would not raise a suspicion with regard to the execution of the Will, but the totality of the circumstances in the instant case would have to be considered. DW 2 has stated that though he signed the Will, he never accompanied Siddagangamma to the Sub-Registrar''s Office where it was registered and that the Will was written on 04.09.2000 and the registration took place subsequently on 05.09.2000.

The contradictions in the evidence of DWs 1 and 2 have also been noted by the Trial Court. Significantly, one other attesting witness viz., Siddananjappa who deposed as PW 2 in favour of the plaintiffs denied that he knew anything about the execution of the Will. He admitted that at the request of DW 2-R.T. Chandraiah he had signed the document without knowing the nature of the document. He has also stated that the Will was not executed in his presence and that he had signed Ex. D1-the Will, at the Assistant Commissioner''s Office at Tiptur. The Trial Court has noted that in the cross-examination nothing contra has been elicited in the evidence of PW 2. Therefore, PW 2 has completely denied attesting the Will or for that matter the execution of the Will.

The Trial Court has also considered certain other aspects of the matter with regard to the thumb impression of the testator and has doubted as to whether the testator was in fact signing the documents and as to why on the Will there was only a thumb impression. In fact, it has noted that the defendants did not produce any other document to prove that she was in fact signing the documents, prior to her paralytic stroke. This aspect was considered in the light of plaintiff''s contention that Siddagangamma never used to sign but affix her thumb impression. Per contra, it was contended by the defendant''s counsel that till the year 2000 she used to sign and it was only thereafter, she started affixing thumb impression to the document.

On consideration of the evidence of DW 2, the trial Court has held that the said evidence was not sufficient to remove the doubts that has arisen in the mind of the Court with regard to the execution of the Will as well as the manner, in which the Will was proved. The first appellate Court while considering these aspects of the matter has affirmed the findings given by the trial Court and has held that the evidence of DW 2-R.T. Chandraiah does not inspire credibility regarding removal of suspicious circumstances. In fact, the first appellate Court has gone to the extent of stating that the legatee under the Will, the appellant herein had actively participated in the whole process of execution of the Will. Though the presence of the beneficiary of the Will with the attestors may not by itself be a factor to invalidate the Will, nevertheless, the first appellate Court on re-appreciation of the evidence has taken note of the fact that the Will had in fact come into existence at the instance of the appellant herein. The evidence of PW 2 is considered to be fatal to the case of the defendant as he supported the plaintiffs and virtually deposed that the Will was not a genuine document as he was not aware as to what he had signed.

In the face of the aforesaid circumstances, both the Courts below have held that the appellant i.e., the defendant in the trial Court had failed to prove the validity of the Will. The validity of the Ex. D1 in the instant case has not been judged on the basis of the testator suffering from paralysis at the time of the execution of the Will. It cannot even be judged on the basis of the evidence of PW 2 per se but, the star witness in the instant case was DW 2 who affirmed the execution of the Will in his examination-in-chief and also the fact that he had attested it. But the contents of his cross-examination clearly would reveal that the document was not proved as per the standards required for proof of Will noted supra in the judgment of the Apex Court. The Courts below have concurrently held that the execution of the Will, though a registered one in the instant case, is surrounded by suspicious circumstances, the conscience of both the Courts below with regard to the validity of the Will have not been satisfied. The Will in question has not received the imprimatur of the Courts below as regards its validity and proof. Both the Courts below have concurrently held that the execution of the Will was shrouded in suspicious circumstances. The consideration of the matter in light of the submissions made by the learned counsel for the appellant does not lead to any different opinion as has been taken by the Courts below. Therefore, in my view, no substantial question of law arises in the appeal. The appeal is dismissed.