Y.J. Mohan Kumar vs Y.J. Indrakumar

B.S. Patil, J.—This Regular First Appeal is directed against the judgment and decree dated 15.01.2005 passed by the learned XVIII Addl. City Civil Judge, Bangalore, decreeing the suit filed by the 1st respondent for, partition and separate possession of his 1/8th share in the suit schedule property.

For the sake of convenience, the parties are referred to by their rank in the Trial Court.

The 3rd defendant is the appellant in this appeal. Plaintiff and defendants 1 to 6 are the children of one Jwala Kumar and Smt. Sree Padma. They had another daughter by name Y.J. Navarathana who died and her legal representatives are on record as respondents 7 to 9. Jwala Kumar was employed in H.A.L. He died while in service on 07.04.1980. According to the plaintiff, out of the terminal benefits of Jwala Kumar, his wife Smt. Sree Padma purchased the suit property which continued to be in joint possession of the plaintiff and the defendants. As Y.J. Navarathana predeceased Smt. Sree Padma and Smt. Sree Padma died on 23.10.1994, plaintiff and defendants became entitled to a share in the suit schedule property. As the plaintiff requested the defendants to effect partition, which was denied, plaintiff was constrained to file the suit.

Only the 3rd defendant-appellant herein filed written statement denying the plaint averments. He urged that the suit property was purchased out of the self earnings of his mother Smt. Sree Padma out of the income derived from rearing cows and vending milk. He set up a Will dated 19.07.1994 alleged to have been executed by his mother bequeathing the suit schedule property in favour of the 3rd defendant. He urged that after the death of the testator-Smt. Sree Padma, he became the absolute owner of the suit schedule property and was in exclusive possession of the same. He further urged that the plaintiff and the 1st defendant separated from the family even during the life time of Smt. Sree Padma and therefore, plaintiff was not entitled to any share. He also contended that if the Court were to hold that the suit property was the joint family property, then the properties bearing Nos. 10 and 11, 4th ''A'' Main Road, K.R. Garden, Murugeshpalya, Bangalore, may also be treated as joint family properties liable to be included and made subject matter of partition.

Based on the pleadings, the Trial Court framed the following issues:

"(i) Whether the Plaintiff proves that the suit schedule properties are the joint family proper ties of the parties to the suit?

(ii) Whether the plaintiff proves that the suit schedule property was purchased by his mother after nucleus of the joint family funds?

(iii) Whether Defendant No. 2 proves that the suit schedule property is the self acquired property of his mother Sree Padma?

(iv) Whether the third Defendant prove that his mother Sree Padma executed a registered Will on 19.07.1994 bequeathing the suit schedule property in his favour?

(v) Whether the third Defendant proves that the written statement schedule property is a joint family property of the parties to the suit and he is entitled for separate possession of his 1/6th share by metes and bounds?

(vi) To what Order or Decree?"

In support of his case, plaintiff examined himself as PW1 and produced Ex. P1-Certified copy of the sale deed and Ex. P2-Death certificate of Smt. Sree Padma. Defendant No. 3 appellant herein examined himself as DW1. The attesting witness to the Will, one Eswaraiah was examined as DW2. Exs. D1 to D14 were produced and marked.

On consideration of the evidence on record, both oral and documentary, the Trial court has held that the plaintiff failed to prove that the schedule property was the joint family property of the family and the same was purchased by the mother of the plaintiff-Smt. Sree Padma out of the family nucleus or from the terminal benefits of her husband. The Trial Court further found that the 3rd defendant was able to establish that the suit schedule property was the self acquired property of his mother-Smt.-Sree, Padma. However, as regards the proof of execution of the registered Will dated 19.07.1994 by Smt. Sree Padma bequeathing the suit schedule property in favour of the 3rd defendant-appellant herein, the Trial Court has returned findings in the negative. Similarly, as regards the two properties bearing Nos. 10 & 11 for which a claim was made in the written statement urging that they also be treated as joint family properties, the Trial Court has negatived the claim made by the appellant-3rd defendant. In the circumstances, aggrieved by the judgment and decree of the Trial Court, the 3rd defendant has filed this appeal.

Learned counsel for the appellant contends that the appellant-defendant No. 3 has duly proved-the Will executed by his mother by producing the original Will and by proving the signature of the testator. It is also contended by him that the attesting witness has unequivocally spoken to the execution of the Will and of the signature put to the Will by the testator in his presence. It is his submission that the Trial Court has unnecessarily entertained suspicion regarding the due execution of the Will. It is urged that the evidence on record clearly established that the testator had sufficient reason for excluding the other heirs while bequeathing the property only in favour of the 3rd defendant. He also points out that merely because other legal representatives were de-inherited the Will cannot be discarded. Reliance is placed by him on the judgments of the Apex Court in the cases of Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others, , Mahesh Kumar (Dead) By L.Rs. Vs. Vinod Kumar and Others, and Savithri and Others Vs. Karthyayani Amma and Others, .

Taking the Court through the evidence of D.W. 2, learned counsel for the appellant urges that the Trial Court has seriously erred in making a totally unwarranted inference that the Will was brought into existence after the institution of the suit or that the attesting witness had not signed the Will as an attesting witness. He points out that the answer recorded in the course of evidence of the attesting witness does not convey any meaning and no attempt "has been made by the plaintiff to elicit the correct answer by putting specific question. It is urged by him that if at all the answer given by D.W. 2 was confusing and did not convey any meaning with regard to the execution of the Will, the Trial Court ought to have extracted the question and answer given by the witness, so that it would have avoided unwarranted inference being drawn on account of some mistake committed in recording the evidence or for that matter in the confusion that has crept in while recording the evidence. He refers to the next sentence in the deposition of D.W. 2 immediately after the confusing portion to contend that in the subsequent sentence, D.W. 2 has given clear answer.

Learned counsel for the appellant has pointed out the following circumstances which according to him will not enable the Court to entertain any suspicion regarding the due execution of the Will on account of the other natural heirs being excluded from succeeding to the properties. They are:

(a) Admittedly plaintiff had left the house during the year 1990.

(b) He had been given compassionate appointment in HAL where his father was employed before he died in harness.

(c) Admittedly, the testator was residing with the appellant defendant no. 3 and other brothers were staying separately.

(d) All sisters, except one, had been married away.

(e) Appellant-defendant No. 3 did not have any permanent job and was only working as a daily wager earning a meager amount.

(f) Testator-mother was looked after by the appellant till she breathed lost.

Learned counsel for the respondents supports the judgment of the Trial Court and emphasizes that the Will in question is beset with several suspicious circumstance. It is her contention that several natural heirs have been deprived of their rights in the property and that there was one unmarried daughter who has been de-inherited; the attesting witness does not say that the contents of the Will were explained to the testator. She relied on the following judgments of the Apex Court in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and Bharpur Singh and Others Vs. Shamsher Singh, regarding the onus on the propounder to prove the Will and also as regards the suspicious circumstance. It is also urged by her that the Will has been translated and explained in Tamil to the testator but there is nothing to show why it was explained in Tamil and whether the testator knew Tamil language.

Having heard the learned counsel for both parties, the points that arise for consideration are:

(a) Whether the appellant-defendant No. 3 has proved due execution of the Will on 19.07.1994 by his mother thereby bequeathing the suit schedule property in his favour?

(b) Whether the findings recorded by the Trial Court holding that the Will has not been proved suffers from illegality or perversity warranting interference in this appeal by this Court?

(c) What decree or order?

Ex. D1 is the registered Will. It is executed on 19.07.1994 by Smt. Sree Padma W/o. Jwala Kumar, mother of the appellant herein. The suit schedule property is House No. 371 measuring East to West-45'' and North to South 30'' situated at Murugeshpalya, Bangalore South Taluk. It is stated to have been bequeathed in favour of appellant-Y.J. Mohan Kumar-Son of the testator. The Will is written in English language. It is attested by two witnesses. The signature of the testator Smt. Sree Padma is found on each page of the Will. The Will mentions that the contents of the same were read over to the testator; were translated to her in Tamil language known to her. Having understood the same, after being satisfied that they were true and correct and were as per her instructions, she signed the Will. Eswaraiah-D.W. 2 is the attesting witness. Another attesting witness is one Muniraj.

To prove the Will, the 3rd defendant has examined himself as D.W. 1. He has stated that his father was working in HAL and died on 07.04.1980 having put in 35 years of service. The suit schedule property was purchased by his mother from her own earnings. The plaintiff left the house prior to 1990. Plaintiff and the 1st defendant purchased properties in their names by using the earnings of the mother, derived from the milk vending business. He has become the absolute owner of the suit schedule property by virtue of the registered Will executed by his mother in his favour. He has paid property tax for the suit schedule property and soon after the death of his mother on 23.10.1994,'' the khatha of the property was transferred in his name. He has also paid improvement charges of Rs. 15,000 to the Bangalore Mahanagara Palike on 30.07.1999. His mother knew reading and writing Kannada and Tamil. He has denied the suggestion that during the stay of the plaintiff in the HAL residential quarters as an employee of the HAL, he used to visit his mother and look after her welfare. He has also denied the suggestion that the property was purchased out of the terminal benefits received by his mother upon the death of his father. He has asserted that it is he who has performed the last rites and ceremonies of his mother. He has denied the suggestion that the Will was concocted by him after the death of his mother with an intention to knock off the property.

The attesting witness-Eswaraiah has deposed that he was working in HAL Aircraft Division during 1994 and used to visit the house of the testator Smt. Sree Padma. According to him, the testator asked him during the month of July, 1994 to go over to the Sub-Registrars Office at Shivajinagar, stating that she intended to make a Will in respect of her property and as per her request, he went to the Sub-Registrar''s Office, Shivajinagar, Bangalore, on 20.07.1994. At that time, the testator and another person by name Muniraj were present. Smt. Sree Padma-Testator was in possession of the Will. She signed the same in his presence and in the presence of another witness. After she signed the Will, Eswaraiah-DW2 and another witness (Muniraju) signed the Will in the presence of each other and thereafter, the Will was presented for registration. He has identified the signature of the testator and as also the signature of the other attesting witness and his own signature. These signatures are marked as Exs. D1(a), D1(b), D1(c), D1(d) and D1(e).

In the cross-examination, DW. 2 has stated that the testator was having sound health. He did not know when she died. He was not aware as to who drafted the Will, when he went to the Sub-Registrar''s office along with Smt. Sree Padma there was another person by name Muniraju and that he subscribed his signature to the Will in the Sub-Registrar''s office after Sree Padma put her signature on the Will. He admits that he did not read the contents of the Will before signing the Will as a witness. He has pleaded his ignorance as to when defendant No. 3/D.W. 1 joined HAL. He was confronted with Exs. C1 and C2-his signatures in the affidavit evidence filed by him and also his own signature found on the last page of the Will-Ex. D1. He has denied the suggestion that his signatures on the Will and on the affidavit filed by him differed. He has also denied the suggestion and he did not attend the Sub-Registrar''s Office and did not subscribe his signature on the Will and that he was deposing falsely only to help defendant No. 3. He has stated that as he was working on contract basis, he was not issued with any salary slip by the HAL but the HAL used to take his signatures in the register. He has admitted that the HAL authorities used to issue identity cards for the persons working in their establishment and that he also had such identity card and could produce the same on the next date of hearing as he had not brought the Identity Card to the Court. He has denied the suggestion that he was not Eswaraiah and that he had no acquaintance with the testator,-Smt. Sree Padma.

It is relevant to notice here that when DW. 2 was cross-examined by the counsel for defendant No. 2, the following answer is recorded:

"When I signed the Will, the Lawyer told the 3rd defendant that the case is going on and I have to attend to the Court to give evidence and he in turn asked me to give evidence. At the time of signing the will, 3rd defendant did not tell me that the case is going on"

The Trial. Court has not believed the evidence of the attesting witness. The reason for not believing the version of the attesting witness are-

(a) If the attesting witness was in confidential terms with Sree Padma-testator, he must have known about the particulars of all the children of Sree Padma, whereas in the cross-examination, he could only speak about the names of two children of the testator.

(b) He has stated that he did not know the cause of death of Jwala Kumar, father of defendant No. 3.

(c) He did not know when the 3rd defendant joined HAL. DW. 2 stated in the cross-examination that he did not know the designation of the 3rd defendant in HAL, though, he claimed that he was working in the same Department.

(d) There was no material on record, except his interested testimony to show that DW. 2 was working in HAL.

In addition to all this, as per the learned Trial Judge, the most important factor, which made her to disbelieve DW. 2 was the ''statement given by D.W. 2 as extracted herein above wherein he has stated that when he signed the Will, the lawyer told the 3rd defendant that the case was going on and he (DW2) had to attend to the Court to give evidence and he in turn asked him to give evidence. This statement according to the learned Trial Judge clearly showed that ''either the said Will-Ex. D.1 was brought into existence after the institution of the suit or the signature of DW. 2 was taken on Ex. D1 after the institution of the suit or that he was not the person who signed the Will as an attesting witness''. Therefore, the Will, according to the trial Judge, was shrouded with suspicion. The court below has further concluded that, to dispel the suspicion, 3rd defendant did not examine the other attesting witness or the person who drafted the Will, nor did he summon the records of the Sub-Registrar''s Office to establish that Sree Padma had been to the Sub-Registrar''s office and signed Ex. D1 and got the same registered. It has to be now seen whether this approach of the learned Trial Judge in brushing aside and discarding the evidence of the attesting witness is just and legal.

Identity of the attesting witness-Eswaraiah has not been disputed by P.W. 1 in his evidence. In the chief-examination, he only states that his mother died intestate. He has not stated anything with regard to the attesting witness to the Will. In the cross-examination, he has stated that he was not aware of the fact that his mother had executed a Will. He states that he has not read the written statement filed by the 3rd defendant-Y.J. Mohan Kumar and that he was not at all aware of the fact that his mother got executed a registered Will.

Though the other two brothers and sisters, apart from the minor children of one of the predeceased daughter-Y.J. Navaratna were arrayed as party defendants to the suit, none of them supported the case of the plaintiff nor did they choose to deny the Will contending that it was concocted or that the attesting witness who signed the Will was a fictitious person posing himself as Eswaraiah but was not Eswaraiah who was employed in HAL. More than anything, P.W. 1 himself was working as an employee in HAL. He has not suggested anything to DW. 2, in his cross-examination that he was not working as employee in HAL. DW2''s signatures on the affidavits and the Will have been marked. He has denied the suggestion that there was any variance in the said signature. If DW2 had not signed the Will as an attesting witness then his signature on the affidavit evidence could not have matched with the signature on the Will. Therefore, question of inferring that the attesting witness has not established his identity and that it should be inferred that he was not present when the Will was registered and that he did not sign the Will as attesting witness on that day is totally baseless and such inference is wholly unwarranted.

The Will has been duly registered before the Sub-Registrar. The mere fact that the attesting witness did not know when the 3rd defendant joined HAL cannot introduce any suspicion. The Learned Trial Judge has misread the cross-examination of the attesting witness while recording findings that DW. 2 did not know the designation of the 3rd defendant though he was working in the same Department along with D.W. 2. In fact, in the cross-examination, what D.W. 2 has stated is as under:

"The father of the 3rd defendant was working in HAL. I do not know his designation in HAL. I do not know-properly as to how many years he worked in HAL. I do not know when and for what reason Jwalakumar died."

This evidence is misread attributing to DW. 2 lack of knowledge about the designation of the 3rd defendant. He has not said that he did not know the designation of the 3rd defendant. He has stated that he did not know the designation of the father of the 3rd defendant

Lack of knowledge on the part of DW. 2 about other children of Sree Padma cannot be taken as a material to discard his evidence and his credential as an attesting witness, particularly, when he has stated in the examination-in-chief that he knew the 3rd defendant and was visiting his mother Sree Padma who used to like him. Similarly lack of knowledge of cause of death of Jwala Kumar, father of the plaintiff by D.W. 2 cannot also be regarded as a circumstance to discredit his version.

Coming to the so called most important aspect which has weighed in the mind of the learned City Civil Judge to discredit his version as regards the answer given by him in the further cross-examination by the counsel for defendant No. 2, it is evident that defendant No. 2 through his counsel, in the cross-examination, challenges the identity of the attesting witness DW. 2. It is by way of answer to his question that D.W. 2 has stated as under:

"When I signed the Will, the Lawyer told the 3rd defendant that the case is going on and I have to attend to the Court to give evidence and he in turn asked me to give evidence. At the time of signing the will, 3rd defendant did not tell me that the case is going on"

The answers elicited above do not make any sense. The first sentence which states, "When I signed the Will, the Lawyer told the 3rd defendant that the case is going on and I have to attend to the Court to give evidence and he in turn asked me to give evidence", cannot be understood to mean that at the time when the Will was signed by the attesting witness, the present case was going on and to give evidence in the present case the 3rd defendant asked DW. 2 to get ready. The answer elicited do not suggest which was the case that was being referred and in what connection DW. 2 was required to give evidence. When such confusion is found in the answer recorded, it was the duty of the advocate who was cross-examining the witness to elicit proper answers which would unearth the truth or help the case of the plaintiff. It would be also the duty of the Court to remove the confusion by recording the actual question asked and the answer given by the witness so as to remove any ambiguity. Such an effort is not made. Section 165 of the Evidence Act confers vast powers on the Court to ask questions to the witness. The Trial Judge has not made any such effort. Therefore, based on such incorrect recording which does not convey any connection to the matter in issue, no inference can be drawn by the Court discrediting the witness and discarding his version. Therefore, this approach of the learned Trial Judge cannot, but be characterized as illegal and perverse.

In his evidence, PW. 1 does not deny the execution of the Will by his mother in favour the 3rd defendant. He pleads his ignorance regarding the execution of the Will. Even when a question was asked in this regard in the cross-examination, he goes to the extent of saying that even as on the date he gave the evidence he was not aware of such a Will executed by his mother. He further states in the cross-examination that he did not even go through the written statement filed by defendant No. 3. This being the position, there was absolutely no material for the learned Trial Judge to disbelieve the version of DW. 1.

Insofar as the exclusion of other heirs is concerned, admittedly, plaintiff secured appointment on compassionate ground upon the death of his father and since 1990 he was staying separately along with his wife. So far as the 1st defendant-Y.J. Jeevan Kumar is concerned, even as per the evidence of plaintiff-PW1, he had also made a separate house and was staying separately. Two daughters had been married prior to 1981. Another sister was married in 1988 and the next one was married in 1990. Even the 2nd defendant had also secured permanent employment. It was the 3rd defendant-appellant herein, who did not have permanent employment. Admittedly, he was only working as a casual and daily wage employee. He was the last son and was looking after his mother till she breathed her last. None of the other brothers or sisters have laid any claim in respect of the suit property. They have not filed any written statement either disputing the Will or asserting their rights for a share in the property. It is only the plaintiff, who had been admittedly staying away from the family, has laid the claim seeking partition. In such circumstances, only on the ground of exclusion of natural heirs, the genuineness of the Will executed by the mother of the 3rd defendant cannot be suspected.

The circumstances as narrated above amply demonstrate that the testator had sufficient reason to exclude the other legal representatives and bequeath the property in favour of her last son. Even the youngest daughter who was married subsequently after the death of her mother has also not supported the case of the plaintiff, which clearly discloses that in the huge family consisting of four brothers and four sisters, no body has supported the case of the plaintiff and nobody has denied the execution of the Will and the bequest made in favour of the 3rd defendant. In such circumstances, the learned Trial Judge was not at all justified in doubting the genuineness of the Will on the ground that no reason was mentioned in the Will regarding the exclusion of other natural heirs.

Learned counsel for the appellant has rightly placed reliance on the judgments in the case of Mahesh Kumar (Dead) By L.Rs. Vs. Vinod Kumar and Others, and in the case of SAVITHRI & OTHERS VS. KARTHYAYANI AMMA AND OTHERS- ILR 2003 KAR 2485 to contend that deprivation of due share to the natural heirs itself is not a factor which would lead to the conclusion that there existed suspicious circumstances surrounding execution of the Will, particularly, in the background of the facts and circumstances of the case narrated above.

Though the learned counsel for the respondent placed reliance on the judgment in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, regarding the mode of proof of the Will and the onus of removing the suspicious circumstances on the propounder of the Will and also yet another judgment of the Supreme Court in the case of Bharpur Singh and Others Vs. Shamsher Singh, regarding the duty of the propounder to offer reasonable explanation to remove suspicious circumstances surrounding the execution of the Will, there can be no quarrel with the well established principles as enunciated in the above judgments of the Apex Court. Even by applying the very principles laid down in the said judgments, if the facts and circumstances of the case and the evidence on record are analysed, it will emerge that the Will was duly executed and the propounder has duly proved the Will.

As laid down by the Apex Court in the judgment in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , answers to the questions-:

(a) Did the testator sign the Will?

(b) Did she understand the nature and effect of disposition in the Will?

(c) Did she put her signature to the Will knowing the contents of the same?

(d) Whether the disposition in the Will is unnatural, improbable or unfair?

(e) Whether the propounder himself has taken prominent part in the execution of the Will?

are to be borne in mind and answered by reference to the facts and circumstances of the case before recording a finding that the Will has been duly proved.

In the instant case, the analysis of the evidence on record and the facts and circumstances of the case give answers to the above questions in favour of due execution of the Will. Therefore, there could be no hesitation to hold that the 3rd defendant-appellant herein successfully proved the due execution of the Will and the bequest made thereunder in his favour of the suit schedule property. The Trial Court has seriously erred in entertaining unnecessary suspicion with regard to the execution of the Will.

The due execution of the Will has been proved by examining the attesting witness who has clearly spoken about the due attestation made as required under Clause (3) of Section 63 of the Indian Succession Act. The Will makes it very clear that the testator understood the contents of the same and had put the signature voluntarily after understanding the nature of disposition. It has come in the evidence that the testator had knowledge of both Kannada and Tamil and the contents of the document was translated and explained to her in Tamil language known to her. The signature of the testator on the Will has been proved. No suspicion can be entertained with regard to the proof of signature of the testator. Similarly, the circumstances under which the testator has bequeathed the property in favour of the 3rd defendant have been dealt with and analysed in the course of the discussion made above.

Therefore, the points raised for consideration are answered holding that the 3rd defendant has proved the due execution of the Will and the findings recorded by the Trial Court to the contrary suffer from illegality and perversity warranting interference by this Court.

As a result, the appeal is allowed. The judgment and decree under challenge is set aside. The suit filed by the plaintiff-respondent No. 1 herein is dismissed. Keeping in mind the relationship between them, parties shall bear their respective costs.