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CASE NO.: Appeal (civil)  3749 of 1999

PETITIONER: Sridevi & Ors.                                           

RESPONDENT: Jayaraja Shetty & Ors.                           

DATE OF JUDGMENT: 28/01/2005

BENCH: ASHOK BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T

       Plaintiffs who are the appellants have filed  this appeal assailing the judgment and decree passed  by the High Court of Karnataka in Regular First  Appeal No. 715 of 1988 to the extent it has gone  against them.  By the impugned judgment, the High  Court has affirmed the judgment and decree passed by  the Trial Court.

Facts :         One Padmayya Kambali was the owner of the  disputed suit properties.  He had four sons and  three daughters.  Appellant Nos. 1 & 2 are the  daughters and appellant No. 3 is the granddaughter  through the third daughter who has died.  Defendant- respondent Nos. 1 to 12 are the grandchildren of  Padmayya Kambali through his three sons and 13th  Respondent is his 4th son.  Padmayya Kambali died on  13.4.1976.  At the time of his death he left behind  vast properties some of which he had inherited from  his brother and includes properties which vested in  the State of Karnataka in respect of which  compensation was paid.  He executed a will dated  28.3.1976 (Exhibit D-1) which was got registered on  11.9.1980

       Appellants filed the suit being Original Suit  No. 5 of 1981 for partition and separate possession  of 7th share for each of the appellants of the  properties described in the Schedules ’A’, ’B’, ’C’  and ’D’ attached to the plaint.  Schedule properties  ’A’, ’B’ and ’C’ are immovable properties whereas  ’D’ schedule properties are movable properties.  It  was alleged in the plaint that the suit properties  are the Joint Hindu Family properties and the  appellants being the natural heirs are entitled to  7th share each in the suit properties.  It was also  averred that respondents were enjoying the  properties to the exclusion of the appellants and  were not willing to partition the properties or come  to a reasonable or amicable settlement.  Nothing has  been stated about the will in the plaint as  according to them it had not been brought to their  notice prior to the filing of the written statement.   Respondent Nos. 1-7 in their written statement  admitted the contents of the plaint.  Respondent  Nos. 8-12, wife and children of Darmaraja Kadamba (a

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pre-deceased son of the testator), and Respondent  No. 13 \026 Raviraja Kadamba contested the suit.   According to them, there was a partition in the  family under a Registered Partition Deed (Exhibit D- 4) dated 4.1.1961.  Under the said partition, the  female members were allotted major shares in the  properties which were in personal cultivation and  enjoyment of the family whereas Dharmaraja Kadamba  (deceased) \026 husband & father of Respondent Nos. 8  to 12 and Raviraja Kadamba \026 Respondent No. 13, were  allotted properties which were in possession of the  tenants.  After the coming into force of the  Karnataka Land Reforms (Amendment) Act, 1973, Act 1  of 974, all tenanted lands vested in the Government  and the two sons were left with no properties.  In  order to correct the injustice done to these two  sons, Padmayya Kambali bequeathed schedule  properties ’A’ and ’B’ (which were not under the  tenants) in their favour and the daughters i.e. the  appellants were given the right to receive  compensation in lieu of the lands which were with  the tenants and had vested in the Government under  the Land Reforms Act.  It was averred that Padmayya  Kambali executed the will of his own while in sound  disposing mind.  At the time of execution of the  will, he was in possession of his physical and  mental faculties.  It was averred that except the  properties which are the subject matter of this  appeal and are shown in schedule ’A’ & ’B’ to the  will, other properties were amenable to partition.   Insofar as immovable properties are concerned, they  were divided amongst the heirs soonafter the death  of Padmayya Kambali.  It was also averred that the  contents of the will executed by the testator were  disclosed at the time of final obeisance ceremony of  Padmayya Kambali in the year 1976.         The Trial Court framed relevant issues.   Appellants examined PWs. 1 to 4 and got marked  Exhibits P-1 to P-15.  The respondents examined 5  witnesses which included Respondent No. 13 \026  himself, Scribe and two attesting witnesses of the  will, hand-writing expert and got marked documents  Exhibits D-1    to D-5.

       The Trial Court after considering the entire  material and evidence on record found that the will  executed by Padmayya Kambali was genuine and valid.   It was held that the schedule properties Schedule  ’A’ & ’B’ bequeathed in favour of his two sons viz.  Dharmaraja Kadamba and Raviraja Kadamba under the  will are not amenable to partition.  Regarding the  other properties the suit was decreed.  There is no  dispute regarding the properties in respect of which  the suit has been decreed.

       Assailing the findings of the Trial Court that  the will is genuine and valid, the appellants filed  First Appeal in the High Court.  It was alleged in  the memo of appeal that the execution of the will  has not been proved in accordance with law and that  there were suspicious circumstances surrounding the  will which the propounder of the will failed to  dispel by leading cogent and acceptable evidence.

       The High Court after re-examining the entire

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evidence present on the record held that the scribe  in his testimony had vividly stated that the will  was drafted on the dictation of the testator as per  his desire.  The two attesting witnesses had stated  that the will was read to the testator and the  testator, after understanding the contents thereof,  signed the same.  The testator signed the will in  their presence and they had signed the will as  attesting witnesses in his presence.  Hand-writing  expert produced by Respondent Nos. 8-13 corroborated  the testimony of the scribe and the two attesting  witnesses.  He compared the signatures of the  testator on the will (at 6 places) with his admitted  signatures and in his opinion the signatures  appending to the will were that of the testator.   

       Accordingly, the appeal was dismissed aggrieved  against which the present appeal has been filed.          Counsel for the parties addressed arguments on  Issue No. 4 only, which is to the following effect  :- "Whether the Will dated 28.3.1976 executed by  Late Padmaraja Kambali set up by the defendants  8 to 13 is true and valid and executed by late  Padmaraja Kambali in sound and disposing state  of mind?"

       Shri Sanjay Parikh, learned advocate appearing  for the appellants strenuously contended that the  will propounded by the respondents was not a duly  executed will.  According to him, the burden to  prove due execution of the will was on the  propounders of the will which they have failed to  discharge.  That the will was surrounded by  suspicious circumstances.  The burden to remove the  suspicion on the due execution of the will was also  on the propounders which they have failed to  discharge.  According to him, the testator died  within 15 days of the execution of the will and that  he did not have the testamentary capacity to execute  the will.  Respondent No. 13 had taken a prominent  part in the execution of the will as he was present  in the house at the time of the alleged execution of  the will.  That natural heirs had been excluded from  the properties bequeathed in favour of Dharmaraja  Kadamba and Raviraja Kadamba without any valid  reasons.  That the respondents had failed to  disclose the execution of the will in any of the  earlier proceedings before the revenue authorities  and the forest authorities which were contested  between the appellants and Respondent Nos. 8-13  which throws a grave and serious doubt about the due  execution of the will.  That the will was got  registered after a lapse of 4 years and did not see  the light of the day till it was produced in the  present proceedings after a lapse of more than 6  years.  That the burden to dispel the suspicious  circumstance enumerated above was on the propounders  of the will which they had failed to discharge by  leading cogent and acceptable evidence.  As against  this,       Dr. Rajeev Dhavan, learned Senior  Counsel appearing for the Respondent Nos. 8-13  contended that the due execution of the will had  been proved by the testimony of the scribe and the  two attesting witnesses coupled with the testimony

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of the hand-writing expert.  That the attesting  witnesses have categorically stated that the will  had been executed in their presence and the testator  signed the same while in sound disposing mind and in  possession of full physical and mental faculties.   The need to register the will after a lapse of 4  years arose as per the legal advice given to them.   That the will had been disclosed to the respondents  at the time of final obeisance ceremony of the  deceased in the year 1976, and then in the year 1978  in the proceedings before the forest authorities.   That the will was disclosed to the entire world at  the time of its registration on 11.9.1980.   According to him, there were no suspicious  circumstances attending the due execution of the  will and even if there were any such circumstances,  the same had been dispelled by the respondents by  leading cogent evidence.

       It is well settled proposition of law that mode  of proving the will does not differ from that of  proving any other document except as to the special  requirement of attestation prescribed in the case of  a will by Section 63 of the Indian Succession Act,  1925.  The onus to prove the will is on the  propounder and in the absence of suspicious  circumstances surrounding the execution of the will,  proof of testamentary capacity and proof of the  signature of the testator, as required by law, need  be sufficient to discharge the onus.  Where there  are suspicious circumstances, the onus would again  be on the propounder to explain them to the  satisfaction of the court before the will can be  accepted as genuine.  Proof in either case cannot be  mathematically precise and certain and should be one  of satisfaction of a prudent mind in such matters.   In case the person contesting the will alleges undue  influence, fraud or coercion, the onus will be on  him to prove the same.  As to what are suspicious  circumstances have to be judged in the facts and  circumstances of each particular case.  { For this  see H. Venkatachala Iyengar v. B.N. Thimmajamma &  Ors. [(1959) Supp.1 SCR 426] and the subsequent  judgments Ramachandra Rambux v. Champabai &  Ors.[(1964) 6 SCR 814]; Surendra Pal & Ors. v.             Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC  600]; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors.  [(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr.  LRs. & Ors. v. Chandrasekaran & Anr. [(2005) 1 SCC  280]

       In the light of this settled position of the  law, we have to examine as to whether the will under  consideration had been duly executed and the  propounders of the will had dispelled the suspicious  circumstances surrounding the will.

       Although the Trial Court as well as the High  Court recorded a finding of fact that the will had  been duly executed, but on the insistence of the  counsel for the parties we have gone through the  evidence of the scribe, two attesting witnesses and  hand-writing expert at length.   

       The propounder of the will has to show that the

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will was signed by the testator; that he was at the  relevant time in sound disposing state of mind; that  he understood the nature and effect of dispositions  and had put his signatures to the testament of his  own free will and that he had signed it in the  presence of the two witnesses who attested in his  presence and in the presence of each other.  Once  these elements are established, the onus which rests  on the propounder is discharged.  DW-2, the scribe,  in his testimony has categorically stated that the  will was scribed by him at the dictation of the  testator.  The two attesting witnesses have deposed  that the testator had signed the will in their  presence while in sound disposing state of mind  after understanding the nature and effect of  dispositions made by him.  That he signed the will  in their presence and they had signed the will in  his presence and in the presence of each other.  In  cross-examination, the appellants failed to elicit  anything which could persuade us to disbelieve their  testimony.  It has not been show that they were in  any way interested in the propounders of the will or  that on their asking they could have deposed falsely  in court.  Their testimony inspires confidence.  The  testimony of the Scribe (DW-2) and the two attesting  witnesses (DWs. \026 3 & 4) is fully corroborated by  the statement of hand-writing expert (DW-5).  The  will runs into 6 pages.  The testator had signed  each of the 6 pages.  Hand-writing expert compared  the signatures of the testator with his admitted  signatures.  He has opined that the signatures on  the will are that of the testator.  In our view, the  will had been duly executed.

       Coming to the suspicious circumstances  surrounding the will, it may be stated that although  the testator was 80 years of age at the time of the  execution of the will and he died after 15 days of  the execution of the will, the two attesting  witnesses and the scribe have categorically stated  that the testator was in sound state of health and  possessed his full physical and mental faculties.   Except that the deceased is 80 years of age and that  he died within 15 days of the execution of the will,  nothing has been brought on record to show that the  testator was not in good health or possessed of his  physical or mental faculties.  From the cross- examination of the scribe and the two attesting  witnesses, the appellants have failed to bring out  anything which could have put a doubt regarding the  physical or mental incapacity of the testator to  execute the will.  Submission of the learned counsel  for the appellants that the testator had deprived  the other heirs of his property is not true.  The  family properties had been partitioned in the year  1961.  The shares which were given to Dharmaraja  Kadamba and Raviraja Kadamba were in possession of  tenants and vested in the State Government after  coming into force of Karnataka Land Reforms  (Amendment) Act, 1973 whereas the properties which  had been given to the daughters were in the personal  cultivation of the family.  The testator while  executing the will bequeathed the properties which  had fallen to his share in the partition and which  he had inherited from his brother which were in his

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personal cultivation in favour of his two sons  Dharmaraja Kadamba and Raviraja Kadamba and gave the  right to receive compensation to other heirs of the  properties which were under the tenants and had  vested in the State Government.  It is not a case  where the father had deprived his other children  totally from inheritance.  Reasons for unequal  distribution have been given in the will itself.   This had been done by him to balance the equitable  distribution of the properties in favour of all his  children.

       Counsel for the appellants argued that  Respondent No. 13 had taken prominent part in the  execution of the will as he was present in the house  at the time of the alleged execution of the will.   We do not find any merit in this submission.  Apart  from establishing his presence in the house, no  other part is attributed to Respondent No. 13  regarding the execution of the will.  Mere presence  in the house would not prove that he had taken  prominent part in the execution of the will.   Moreover, both the attesting witnesses have also  stated that the daughters were also present in the  house at the time of execution of the will.  The  attesting witnesses were not questioned regarding  the presence of the daughters at the time of the  execution of the will in the cross-examination.  The  presence of the daughters in the house at the time  of execution of the will itself dispels any doubt  about the so-called role which Respondent No. 13 had  played in the execution of the will.  They have not  even stepped into the witness box to say as to what  sort of role was played by Respondent No. 13 in the  execution of the will.

       Another suspicious circumstance which was  highlighted at great length by the learned counsel  for the appellant is that the Respondent Nos. 8-13  had failed to disclose the will for a period of 4  years in any of the earlier proceedings before the  revenue authorities and the forest authorities.   That the will was got registered after a lapse of 4  years and did not see the light of the day till the  initiation of proceedings in the present suit.  We  do not find any substance in this submission as  well.  Respondent No. 13 in his testimony has stated  that the contents of the will were disclosed in the  year 1976 at the time of final obeisance ceremony of  the testator.  There is not much of cross- examination of this witness on this point.  None of  the appellants have stepped in the witness box.   Sukirthi Hegde (PW-1), husband of Appellant No. 3  i.e. grand-daughter of the testator, denies  knowledge about the disclosure of the contents of  the will at the time of final obeisance ceremony of  the testator.  He has not even stated in his  testimony as to whether he was married to Appellant  No. 3 at the time of the death of the testator or  that he was present at the time of final obeisance  ceremony of the testator.  There is nothing on the  record which could persuade us to disbelieve the  testimony of Raviraja Kadamba (DW-1).  The case of  the respondents is that the will was disclosed in  the year 1978 as well during the proceedings pending

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before the forest authorities.  Respondent No. 13  had moved an application before the forest  authorities for permission to cut the trees standing  on the land which had come to his share under the  will.  It was contested by the appellants. A  settlement was arrived at and the three daughters  viz. Padmaraja Kadamba, Sridevi and Muttu @ Dejamma  (out of whom two are the appellants and 3rd died and  is now represented through her daughter) in a joint  statement filed before the authorities,  categorically stated that "we do not have any right  over the said land".  It was also stated that after  the death of their father, they did not have any  objection for the grant of general certificate  authorizing Respondent No. 13 to cut the trees in  Survey No. 189.  In view of this statement, it does  not lie in the mouth of the appellants to contend  that they had any right over the property.  From  this it can be safely presumed that the statement  that they did not have any right in the land was  made by them only after knowing the contents of the  will.  Both the attesting witnesses have stated that  the daughters were present at the time of the  execution of the will.  This assertion of the two  attesting witnesses has not been controverted by  either of the daughters by appearing in the witness  box.  From their presence in the house at the time  of the execution of the will, it can reasonably be  inferred that they had knowledge about the execution  of the will.  Under these circumstances, it cannot  be held that the execution of the will had not been  brought to the notice of the appellants.

       At the time of registration of the will on  11.9.1980, the scribe and the two attesting  witnesses had been produced before the Registrar.   Their statements were recorded and only after  satisfying himself, the Registrar registered the  will.  The statements of the scribe and the two  attesting witnesses before the Registrar are in  harmony with the statements made by them in the  court.   Another circumstances which was stressed  during the course of the arguments by the counsel  for the appellants was that although it was not  necessary to get the will registered, but still the  respondents got it registered after a period of 4  years only to lend authenticity to the will.   According to Respondent No. 13, the will was got  registered on the advice of a lawyer to enable them  to produce it before various authorities.  Since we  have come to the conclusion that the daughters were  present at the time of execution of the will by the  testator and the execution of the same was disclosed  at the time of final obeisance ceremony of the  testator and that the will had also been brought to  the notice of the appellants in the year 1978 during  the proceedings before the forest authorities, the  registration of the will in the year 1980 by itself  does not cast a doubt regarding the execution of the  will in the year 1976.

       For the reasons stated above, we do not find  any merit in this appeal and the same is dismissed  with no order as to costs.

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