Ramakrishna Sivarama Hegde vs F.M. Ganapathi Shivarama Hegde

T.N. Vallinayagam, J.—By consent both the Appeals are taken up for disposal. Both appeals arise out of O.S.no.20/88 on the file of Munsiff at Yellapur. A suit for declaration that the plaintiff is only legal heir to the estate of deceased Ramakrishna Shivarama Hegde of Kampli village and his Will dated 5.8.83 and for consequent injunction against the disturbance of the possession.

The relief of declaration was denied and injunction was granted by the Trial Court against which two appeals have been preferred by the plaintiff against rejection and the defendants against the grant of injunction. By a common judgment, both appeals were dismissed. Therefore, the plaintiff has come forward with R.S.A.866/98, while the defendants 1 and 2 have preferred R.S.A.829/98.

In R.S.A. 829/98, the plaintiff have preferred cross-objection. The plaintiffs case is that himself and defendants are the sons of Shivarama Hegde who died on 14.2.1988. There was a division between them in 1974 when old partition was effected wherein Sy. Nos. 9/3, 14, 16/2+3, 219 and 87 of Kampli village has been allotted to the father Shivarama Hegde. In 1980, the deceased Shivarama Hegde voluntarily gave shares to all his four sons namely plaintiff and defendants, all these properties were allotted to him in 1974. On the basis of oral allotment, entries were mutated in village records. However, deceased Shivarama Hegde retained the lands on Sy. No.219 of Kampli village. Shivarama Hegde died on 14.2.1988 leaving a Will dated 5.8.1983 granting the above properties to the plaintiff. When Vardi was sought to be given on the basis of the Will, it was objected and the plaintiffs possession was sought to be disturbed. Thus the suit came to be filed.

The defendant contended that there was no division. It was further contended that the deceased Shivarama Hegde had no independent right, title or interest in the property to execute the Will dt.5.8.1983 in favour of the plaintiff. The Will was not a genuine document and was obtained by undue influence and fraud. Consequently, it is not valid and it cannot be accepted.

The Trial Court held that there was a partition in 1974 between the plaintiff and defendants. The plaintiff has failed to prove the alleged Will. Therefore, holding that the plaintiff has no right, but only possession, the suit for injunction was granted and other relief for declaration was denied.

This second appeal is admitted on the question whether the courts below could have held that the plaintiff was in exclusive possession of the suit schedule property in the absence of plea or evidence as to ouster and when the defendants were held to be co-heirs.?

R.S.A. 866/98 is taken for admission. On the question of Will, it is-submitted that under Ex.P. 11, a Will dated 5.8.83 is valid in the eye of law. There is no suspicious circumstances to be dispelled especially when Ex.P-11 is a registered document executed by the deceased Shivarama Hegde. The attestors have been examined as P.Ws.2 and 3 and there is nor reason to disbelieve such evidence. The mere fact that the plaintiff accompanied his father on 5.8.83 the date of which the Will was executed does not create suspicious circumstances to hold that the plaintiff had influenced his father to execute the-Will.

This second appeal is admitted on the question whether on the facts and in the circumstances of the case, the courts below are justified in holding that the plaintiff had failed to prove the execution of the Will Ex.P. 11 dated 5.8.1983 and that it was not valid and legal without considering the fact that the Will was a registered Will and the Testator did not take any action to revoke the Will even though he was alive tor a period of more than 4-1/2 years after the execution of the Will?

On the question of granting injunction, the contention of the defendant was that when there was no partition in 1974 and 1980. and once the Will is dis-believed, it cannot be held that the plaintiff was in exclusive possession of the suit property, the acceptance of the plaintiff''s statement that he is cultivating his father''s property after his death is not proper by the Courts below. If at all the plaintiff is in possession, his possession can only be that of a co-owner as everybody is entitled to a share in the property. Consequently, no injunction can be granted against co-owners or co-heirs. The proper remedy for the plaintiff is to approach the court in a suit for partition. Therefore, the question to be decided in-this appeal is whether the finding rendered by the Courts below on the exclusive possession of the plaintiff is sustainable or not.

The following precedents were cited in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and the following passage was relied upon:

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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67and 68of the Evidence Act are relevant for this purpose. u/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 Sections 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. 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. 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 Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Will 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.

The validity of a Registered Will and genuineness thereof came to be considered in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, AIR 196? SC 567 for the following proposition:

If a Will have been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will not by itself be''sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. Registration may take place without the executant-really knowing what he was registering.

On the question of proof of Will especially when undue influence ;nd fraud is alleged in Surendra Pal and others v. Dr. (Mrs.) Saraswathi Arora and another. AIR 1974 SC I 999 the following passage was relied on:

The petitioner has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free Will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine: and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.

On the question of dispelling suspicion the dictum in Gurdial Kaur and others Vs. Kartar Kaur and Others, the following passage is relied on:

The conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel-the suspicious circumstances. As in the facts and circumstances of the case, the Court of appeal below did not accept the valid execution of the Will by indicating reasons and coming too a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of appeal below has also been upheld by the High Court by the impugned judgment, there is no reason to interfere with such decision.

In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, the following passage is relied on:-

Deprivation of the natural heirs by the testatrix should not raise any suspicion, because the whole idea behind execution of Will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of Will; of course, it may be that in some cases they are fully debarred and in other only partially.

The question whether the Will was not revoked for a period of 4 years has been considered by the Supreme Court in Satya Pal Gopal Das Vs. Smt. Panchu Bala Dasi and Others, the following passage is relied on:-

As we said there are certain outstanding features of the case which should dispel all suspicion that may possible otherwise attach itself to the Will. The Will unregistered on June 30. 1946 and the testator died on March 12, 1950. That is to say, the testator lived for nearly four years after the execution and registration of the Will and yet he took no steps to have the Will cancelled or to revoke it. It could not be that the Will was somehow brought into existence and the signatures of Nrisingha Prosad Das were obtained on the Will by practising some fraud. The endorsement on the Will show that Nrisingha Prosad Das himself had presented the Will for registration to the Sub-Registrar and that the Sub-Registrar had been called to the residence of Nrisingha Prosad Das for the purpose of registering the Will. Nrisingha Prosad Das affixed his signature twice again in the presence of the Sub Registrar as shown by the endorsements. The endorsements also show that execution was admitted by Nrisingha Prosad Das. As earlier mentioned by us. even page of the Will has been signed by Nrisingha Prosad Das and at the foot of the Will, a note listing the various corrections made has also been signed by Nrisingha Prosad Das. Thereafter, there cannot even be the slightest doubt that the document was executed by Nrisingha Prosad Das before the Sub Registrar and that Nrisingha Prosad Das himself presented it to the Sub-Registrar having called him to his own residence of that purpose.

In the light of the above decisions and applying them to the facts of this case it can be reasonably presumed that the Will had been duly and properly executed and the presumption that is available to such a Will as pointed out by the Supreme Court is to be held in favour of the appellant.

Some of the decisions of the Supreme Court (I) the Will in favour of the person brought up as a child in the family and no provision was made for testator as widow, daughter-in-law. but Will was executed by the testator himself and the testator died only four years after the execution and registration of the Will. There was no attempt to cancel the Will by the testator. This exactly is the case on hand and this decision directly applies to the facts of this case, (2) It is also said that the non-bequest to natural heirs is not a ground for setting aside the decree especially when the Will is registered and Sub-Registrar certifying that the Will has been read out to the testator who on doing so admitted the contents thereof. (3) Under Sections 67, 48, 45, 47of the Evidence Act, the Will if registered should be presumed to be valid. Unlike other documents, the Will speaks from the death of the testator and so when it is propounded or produced before a court, the testator who has already departed the world, cannot sa\\ whether it is his Will or not: and this aspect naturally introduces an elements of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills, the Court will start on the same enquiry as in the case of proof of documents. The property (sic) should be called upon to show by satisfactory evidence that the Will was signed by the testator and it was his signature. This remains permanent when it is a registered Will. (4) Mere registration does not give sanctity or validity to a Will, but if the evidence of registration was made in such a manner that it was brought home to the testator that it was a Will he is executing, he admitted the execution and signed it in token thereof. The registration will dispel the doubt as to the genuineness of the Will.

Applying the above principles, in any event, to the facts of this case it has got to be held that the Will has been validly and properly executed. Consequently, the finding regarding the Will his to be set aside and the same is therefore, hereby set aside. Once the Will is found to be genuine, then the ownership conferred upon the plaintiffs automatically conies in. Therefore. the second appeal 866/98 has to be allowed and accordingly it is allowed.

So far as the other appeal by the defendants is concerned, on the question of possession, I find that both the Courts have come to the conclusion that the plaintiff is in possession. The only attack made by the defendants/appellants is that as co-heirs there cannot be any injunction against them. Now, that I am holding that the plaintiffs have proved the Will, the finding of possession by the Courts below has to be confirmed and the second appeal 829/1998 has to be dismissed and the same is accordingly dismissed. In the result the suit for declaration and injunction is decreed as prayed for. No costs.