1
® IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH
DAY OF FEBRUARY 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1316 OF 2011
BETWEEN:
Smt. M. Narayanamma,
Wife of G. Hanumanthappa,
Aged 69 years,
Landlord, Hindu,
Residing at Chikka Basavanapura,
Virgonagar Post,
K.R.Puram Hobli,
Bangalore – 560 049.
… APPELLANT
(By Shri. M.S. Varadarajan, Advocate)
AND:
1. Smt. Lakshmidevi,
Wife of Gopal,
Aged about 41 years,
Resident of Door No.2,
Chikka Basavanapura,
Virgonagar Post,
K.R.Puram Hobli,
Bangalore – 560 049.
2
2. Sri. Shivananda,
Son of G. Hanumanthappa,
Aged 46 years,
3. Sri. Vivekananda,
Son of G. Hanumanthappa,
Aged 43 years,
Respondents 2 and 3 are
Residing at Chikka Basavanapura,
Virgonagar Post,
K.R.Puram Hobli,
Bangalore – 560 049.
4. C. Krishnareddy,
Son of Late C. Obala Reddy,
Major,
Resident of Om Sudarshan Nilaya,
4th
Cross, College Road,
K.R.Pura, New Extension,
Bangalore – 560 036.
5. Sri. D.K.Devendra,
Son of D.K.Krishnappa,
Aged 42 years,
Resident of 265, Ahaya Nivas,
Devasandra, K.R.Puram,
Bangalore – 560 036.
…RESPONDENTS
(By Shri. Amit Deshpande, Advocate for Respondent No.1
Respondent nos. 2, 3 and 5 are served
Vide order dated 8.1.2015 service of notice to respondent no.4 is
dispensed with)
3
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 2.4.2011 passed in O.S.No.4071/2002 on the file of the
XVIII Additional City Civil Judge, Bangalore (CCH 10),
decreeing the suit for partition and mesne profits, decreeing the
suit for partition against the defendants 1 to 3 therein and
dismissing the suit against the defendant nos.4 and 5.
This Regular First Appeal having been heard and reserved
on 22.01.2105 and coming on for pronouncement of Judgment
this day, the Court delivered the following:-
J U D G M E N T
This appeal is filed by the defendants in the suit.
2. The parties are referred to by their rank before the trial
court for the sake of convenience.
3. The plaintiff is said to be the daughter of the first
defendant. Defendants – 2 and 3 are said to be the brothers of the
plaintiff.
The plaintiff’s grand-father, T.N.Mariswamy, is said to
have died in the year 1947, in a police firing incident, when a
curfew was imposed to quell the several ‘freedom fighters’, of
whom Mariswamy was said to be one, agitating for the
4
independence of India from British Rule. It transpires that the
then Government had ordered grant of land to the legal heirs of
Mariswamy in recognition of his sacrifice. And it transpires 14
acres and 9 guntas of land were said to have been granted in
favour of Lakshmamma, the widow of Mariswamy – the grand
mother of the plaintiff, in land bearing survey no. 26/2 and 26/3
of Basavanpura village, Krishnaraja puram hobli, Bangalore South
Taluk (Now – Bangalore East Taluk), which was more fully
described in the Schedule to the plaint and referred to as the suit
property. Lakshmamma was said to have been possession of the
lands along with the defendants and the plaintiff , till her death on
12.8.1988.
It is stated that Lakshmamma had executed a Will, dated
20.2.1971, which was duly registered, bequeathing the suit
property in favour of the plaintiff and the defendants 1 to 3. It was
claimed that the parties were jointly in possession of the property
and there was no division by metes and bounds after the death of
Lakshmamma.
5
It was alleged that the first defendant who was under the
influence of defendants 2 and 3, was intent on disposing of the
said lands at their instance, to the exclusion of the plaintiff and
thereby deprive her of her legitimate share. The khatha in respect
of the suit property was said to be in the name of the first
defendant as the eldest member of the family. It is alleged that
when the plaintiff broached the subject of partition, with the said
defendants, they are said to have reacted violently. It was the
plaintiff’s say that she was denied any right whatsoever in the suit
property, on the ground that she was married and could no longer
claim any right in the suit property.
It is in that background that the plaintiff is said to have filed
the suit. The plaintiff had claimed one fourth share in the suit
property and for a division by metes and bounds and to be put in
possession of her share. She had also claimed mesne profits.
It is stated that the trial court had granted an order of
temporary injunction, dated 25.6.2002, restraining the defendants
1 to 3 from alienating the suit property. Notwithstanding the said
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order of injunction, the defendants 1 to 3 are said to have executed
a sale deed dated 3.12.2004, in favour of defendant no.4 in respect
of a portion of the suit property. It was further stated that the said
defendants 1 to 3 had also executed two sale deeds, both dated
20.2.2003 in favour of one L.Ramesh Kumar and one
Manjunath V.A. And that, even before filing of the suit, the
defendant had executed a sale deed in favour of defendant no.4, in
respect of a portion of the suit property on 31.10.2001. It was
hence contended that the said sale deeds were not only in
deprivation of the plaintiff’s legitimate share in the suit property
but blatantly in violation of the order of injunction operating
against the defendants.
The first defendant had filed written statement to deny the
plaint averments. In that the joint possession of the suit property
as claimed by the plaintiff was denied, so also was the will of
Lakshmamma on the ground that as she was the only daughter of
Lakshmamma, she would have succeeded to the property in the
usual course and hence any will was unnecessary and superfluous.
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Defendant no.5 had filed written statement denying the plaint
averments and claiming that he has been impleaded as an after
thought. It was contended that he had purchased the portion of the
suit property under a registered sale deed dated 30.12.2004. It
was further contended that having regard to the main prayer in the
suit, there is no relief claimed against defendant no.5 and hence
the suit be dismissed against him.
On the basis of the above pleadings, the trial court had
framed the following issues.
“1. Whether the plaintiff proves that her
grand mother executed a Will on 20.2.1971
bequeathing the suit schedule property in favour of
the parties herein?
2. Whether the plaintiff proves that she
is entitled for 1/4th
share in the suit schedule
property and separate possession of the same by
metes and bounds?
3. Whether the plaintiff proves that she
entitled to enquiry for mesne profits?
4. To what reliefs are the parties
entitled to?”
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All the issues have been answered in the affirmative. The
suit has been decreed as prayed for.
4. The emphasis in the present appeal is on the primary
ground that the court below has proceeded on the erroneous
presumption that the defendant no.1 has not denied the execution
of the will by her mother, bequeathing the suit property in favour
of defendant no.1 and her children, including the plaintiff.
Secondly, that the will in question was not proved in accordance
with law, even if it could be accepted as having been executed by
Lakshmamma. And that the suit ought to be dismissed on this
ground alone without reference to any other circumstance, as the
trial court had failed to appreciate that in the face of Section 68 of
the Evidence Act, 1872 and with respect to wills, Section 90 of the
Act cannot be invoked.
That the trial court was not justified in drawing an adverse
inference against the defendant no.1 for not having tendered
evidence. As the sole basis of the Plaintiff’s claim was the alleged
will, which has not been proved in accordance with law. Hence
9
there was no necessity to tender any evidence on the part of the
defendant. Reliance is placed on the decision of the apex court in
the case of Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766.
Incidentally, the appellant has filed an application under Order VI
Rule 17 of the Code of Civil Procedure, 1908 (Hereinafter referred
to as the ‘CPC’, for brevity), seeking to amend the written
statement of Defendant no.1 to plead an entirely new set of facts
and circumstances, which is dealt with hereunder.
Further, the appellants have also filed an application under
Order XLI Rule 27, CPC, seeking to produce additional evidence,
the said application is also considered hereunder.
5. On the other hand, the learned counsel for respondent
no.1 seeks to justify the judgment of the trial court and would
vehemently oppose the above said applications filed in this appeal,
and places reliance on several authorities.
6. After having heard the learned counsel for the parties at
length, a question of law that arises for consideration is as to
whether a will which is more than 30 years old could be accepted
10
as proved, invoking Section 90 of the Evidence Act, 1872,
notwithstanding the rule of evidence contained in Section 68 of
the said Act, as regards the need to examine an attesting witness in
proof of execution of a will.
The suit had been filed on 24.6.2002, the plaintiff had
produced the original registered will of Lakshmamma, her grand
mother, dated 20.2.1971 and the same was marked as Exhibit P2,
in the course of her examination–in-chief, by way of evidence,
tendered on 3.2.2005. The plaintiff in her evidence had indicated
that, of the two attesting witnesses, one was dead and the
whereabouts of another were not known to her. She had,
however, made attempts to trace him but was not able to. The
plaintiff was cross-examined and it was suggested that the will
was a got up document. Defendant no. 1 had not chosen to tender
evidence.
7. In the above circumstances, in considering whether the
will has been proved in accordance with law, we may refer to the
relevant provisions of law and the case law on the subject.
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The relevant provisions of law are extracted hereunder for
ready reference.
Section 63(c) of the Indian Succession Act, 1925
“63(c).The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix
his mark to the Will or has seen some other person sign the
Will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgement
of his signature or mark, or the signature of such other
person; and each of the witnesses shall sign the Will in the
presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no
particular form of attestation shall be necessary.”
Section 68 of the Indian Evidence Act, 1872
“68. Proof of execution of document required by
law to be attested. – If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence:
[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document,
not being a Will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (16
of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]”
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Section 90 of the Indian Evidence Act, 1872
“90. Presumption as to documents thirty years old. –
where any document, purporting or proved to be thirty
years old, is produced from any custody which the Court in
the particular case considers proper, the Court may
presume that the signature and every other part of such
document, which purports to be in the handwriting of any
particular person, is in that person’s handwriting, and, in
the case of a document executed or attested, that it was duly
executed and attested by the persons by whom it purports to
be executed and attested.
Explanation.- Documents are said to be improper
custody if they are in the place in which, and under the care
of the person with whom, they would naturally be; but no
custody is improper if it is proved to have had a legitimate
origin, or if the circumstances of the particular case are
such as to render such an origin probable.”
Section 114 of the Indian Evidence Act, 1872
“114. Court may presume existence of certain
facts.- The Court may presume the existence of any fact
which it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and
public and private business, in their relation to the facts of
the particular case.”
The following cases are referred to in chronological order to
address the nuances that come into play, dependant on the
particular circumstances surrounding a will and to appreciate the
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context in which a strict compliance with the rigour of the law is
imperative .
i) Munnalal, minor and others, vs. Kashibai and others, AIR
(34) 1947 Privy Council 15,
The sub-ordinate judge in deciding whether a disputed will
was proved held that though a presumption under Section 90 of
the Evidence Act could be drawn that the will had been properly
executed and attested, it was held, that it could not under that
Section, presume that the testator, when he made his will, was of
sound disposing mind. It was held that the will was not proved.
In appeal, the High Court had held that the presumption
which could be drawn under Section 90 extended to testamentary
capacity and held the will proved.
The Privy Council, while confirming the view of the High
Court, held thus :
“ A party setting up a will is required to
prove that the testator was of sound disposing mind
when he made his will but, in the absence of any
evidence as to the state of the testator’s mind, proof
14
that he had executed a will rational in character in
the presence of witnesses must lead to a
presumption that he was of sound mind, and
understood what he was about. This presumption
can be justified under the express provisions of
Section 90, since a will cannot be said to “duly”
executed by a person who was not competent to
execute it; and the presumption can be fortified
under the more general provisions of Section 114,
since it is likely that a man who performs a solemn
and rational act in the presence of witnesses is sane
and understands what he is about.”
ii) H. Venkatachala Iyengar vs. B.N.Thimmajamma and others,
AIR 1959 SC 443
A three judge bench of the apex court has provided the
following guidelines in the matter of proof of wills :
“18. 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
15
refer to the statutory provisions which govern the
proof of documents. Sections 67 and 68, Evidence Act
are relevant for this purpose. Under Section 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. 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
16
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
Section 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. (emphasis supplied )
19. However, there is one important feature which
distinguishes wills from other documents. 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 say whether it is his will or
17
not; and this aspect naturally introduces an element 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 the proof of
documents. The propounder would be called upon to
show by satisfactory evidence that the will was signed
by the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions
and put his signature to the document of his own free
will. Ordinarily 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 the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature, in
question is the signature of the testator may not
remove the doubt created by the appearance of the
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signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate
that the said dispositions may not be the result of the
testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
accepted as the last will of the testator. The presence
of such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is
true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the
execution of the will propounded, such please may
have to be proved by the caveators; but, even without
such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would
be a part of the initial onus to remove any such
legitimate doubts in the matter. (emphasis supplied )
21. Apart from the suspicious circumstances to
which we have just referred, in some cases the wills
19
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English courts often mention the test of the satisfaction
of judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage
from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction
with reference to wills; but any objection to the use of
the word 'conscience' in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument
produced before the court is the last will of the
testator, the court is deciding a solemn question and it
must be fully satisfied that it had been validly executed
by the testator who is no longer alive.
22. It is obvious that for deciding material
questions of fact which arise in applications for
20
probate or in actions on wills, no hard and fast or
inflexible rules can be laid down for the appreciation
of the evidence. It may, however, be stated generally
that a propounder of the will has to prove the due
and valid execution of the will and that if there are
any suspicious circumstances surrounding the
execution of the will the propounder must remove the
said suspicions from the mind of the court by cogent
and satisfactory evidence. It is hardly necessary to
add that the result of the application of these two
general and broad principles would always depend
upon the facts and circumstances of each case and
on the nature and quality of the evidence adduced by
the parties. It is quite true that, as observed by Lord
Du Parcq in Harmes v. Hinkson, 50 Cal W N 895:
(AIR 1946 PC 156) "where a will is charged with
suspicion, the rules enjoin a reasonable skepticism,
not an obdurate persistence in disbelief. They do not
demand from the judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth". It would sound platitudinous to say so, but
it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open
though vigilant, cautious and circumspect.”
(emphasis supplied)
21
iii) Shashikumar Banerjee and others vs. Subodh Kumar
Banerjee, AIR 1964 SC 529
While referring to H. Venkatachala Iyengar, supra, a
Constitution Bench of the apex court has held thus :
“4. The principles which govern the proving of a
will are well settled; (see H. Venkatachala Iyengar v. B.
N. Thimmajamma, 1959 (Supp.1) SCR 426: AIR 1959 SC
443 and Rani Purnima Devi v. Khagendra Narayan
Dev, 1962(3) SCR 195: 1962 AIR(SC) 567). The mode of
proving a will does not ordinarily differ from that of
proving any other document except as to the special
requirement of attestation prescribed in the case of a will
by S. 63 of the Indian Succession Act. The onus of
proving the will is on the propounder and in the absence
of suspicious circumstances surrounding the execution
of the will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient
to discharge the onus. Where however there are
suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the
Court before the Court accepts the will as genuine.
Where the caveator alleges undue influence, fraud and
coercion, the onus is on him to prove the same. Even
where there are no such pleas but the circumstances give
rise to doubts, it is for the propounder to satisfy the
22
conscience of the Court. The suspicious circumstances
may be as to genuineness of the signature of the testator,
the condition of the testator's mind, the dispositions made
in the will being unnatural improbable or unfair in the
light of relevant circumstances or there might be other
indication in the will to show that the testator's mind was
not free. In such a case the Court would naturally expect
that all legitimate suspicion should be completely
removed before the document is accepted as the last will
of the testator. If the propounder himself takes part in the
execution of the will which confers a substantial benefit
on him, that is also a circumstance to be taken into
account, and the propounder is required to remove the
doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the Court would grant probate, even if the
will might be unnatural and might cut off wholly or in
part near relations. It is in the light of these settled
principles that we have to consider whether the
appellants have succeeded in establishing that the will
was duly executed and attested.” (emphasis supplied)
Iv) Kalidindi Venkata Subbaraju and others vs. Chintalapati
Subbaraju and others, AIR 1968 SC 947
The apex court, while considering whether the presumption
under Section 90 would arise in respect of a certified copy of a
will and not the original, held thus :
23
“5. As aforesaid, the respondents did not
produce the original will but produced only its
certified copy, Ex. B.9, which they obtained from
the record of Suit No. 21 of 1923 wherein
Surayamma had filed the original will along with
her written statement. The respondents, however,
had given notice to the appellants to produce the
original will alleging that it was in their possession
but the appellants denied the allegation and failed
to produce the will. Both the trial Court and the
High Court were of the view that the said will
along with other papers of Somaraju were in the
appellants' custody, that they had deliberately
withheld it as it was in their interest not to produce
it. The trial Court therefore was in these
circumstances justified in admitting the certified
copy of the will as secondary evidence of the
contents of the will. Since the will was executed in
1921 and the testator had died soon after its
execution it was not possible to produce either its
writer or the witnesses who attested it. It was
undisputed that its scribe and the attesting
witnesses were all dead except Dalapati
Venkatapathi Raju, D.W. 4. But the appellants'
contention as regards D.W.4 was that he was not
the same person who attested the will. The High
Court appears to have relied upon s. 90 of the
Evidence Act and to have drawn the presumption
that the will being more than 30 years old it was
duly executed and attested by the persons by whom
it purported to have been executed and attested.
Such a presumption, however, under that section
arises in respect of an original document. (See
Munnalal v. Mt. Kashibai, AIR 1947 PC 15).
Where a certified copy of a document is produced
the correct position is as stated in Bassant Singh v.
Brij Rai Saran Singh, 67 Ind App 180 + (AIR 1935
PC 132) where the Privy Council laid down that if
the document produced is a copy admitted under
Section 65 as secondary evidence and it is
produced from proper custody and is over 30 years
24
old only the signatures authenticating the copy can
be presumed to be genuine. The production of a
copy therefore does not warrant the presumption
of due execution of the original document. The
Privy Council repelled the argument that where a
copy of a will has been admitted the Court is
entitled to presume the genuineness of such will
which purports to be 30 years old. Relying on the
words "where any document purporting or proved
to be 30 years old" in Section 90, the Privy Council
held that the production which entitles the Court to
draw the presumption as to execution and
attestation is of the original and not its copy and
that the decisions of the High Courts of Calcutta
and Allahabad on which the argument was based
were not correctly decided. This view has since
then been approved of by this Court in Harihar
Prasad v. Deo Narain Prasad, 1956 SCR 1 at p.9
= (AIR 1956 SC 305 at p.309). The High Court
therefore was not entitled to presume from the
production of the copy either the execution or the
attestation of the said will.
V) Madhukar D. Shende vs. Tarabai Aba Shedage, (2002)2
SCC 85.
The apex court has expounded thus as regards the proof of
execution and attestation of a will thus :
“8. The requirement of proof of a will is the
same as any other document excepting that the
evidence tendered in proof of a will should
additionally satisfy the requirement of Section 63 of
the Indian Succession Act, 1925 and Section 68 of the
25
Indian Evidence Act, 1872. If after considering the
matters before it, that is, the facts and circumstances
as emanating from the material available on record of
a given case, the court either believes that the will was
duly executed by the testator or considers the existence
of such fact so probable that any prudent person
ought, under the circumstances of that particular case,
to act upon the supposition that the will was duly
executed by the testator, then the factum of execution
of will shall be said to have been proved. The delicate
structure of proof framed by a judicially trained mind
cannot stand on weak foundation nor survive any
inherent defects therein but at the same time ought not
to be permitted to be demolished by wayward pelting
of stones of suspicion and supposition by wayfarers
and waylayers. What was told by Baron Alderson to
the Jury in R v. Hodge, (1838) 2 Lewis CC 227, may
be apposite to some extent:
"The mind was apt to take a pleasure
in adapting circumstances to one another and
even in straining them a little, if need be, to
force them to form parts of one connected hole;
and the more ingenuous the mind of the
individual, the more likely was it, considering
such matters, to overreach and mislead itself,
to supply some little link that is wanting, to
take for granted some fact consistent with its
previous theories and necessary to render them
complete."
26
The conscience of the court has to be satisfied
by the propounder of will adducing evidence so as to
dispel any suspicions or unnatural circumstances
attaching to a will provided that there is something
unnatural or suspicious about the will. The law of
evidence does not permit conjecture or suspicion
having the place of legal proof nor permit them to
demolish a fact otherwise proved by legal and
convincing evidence. Well founded suspicion may be a
ground for closer scrutiny of evidence but suspicion
alone cannot form the foundation of a judicial verdict
positive or negative.
9. It is well-settled that one who propounds a
will must establish the competence of the testator to
make the will at the time when it was executed. The
onus is discharged by the propounder adducing
prima facie evidence proving the competence of the
testator and execution of the will in the manner
contemplated by law. The contestant opposing the
will may bring material on record meeting such
prima facie case in which event the onus would shift
back on the propounder to satisfy the court
affirmatively that the testator did know well the
contents of the will and in sound disposing capacity
executed the same. The factors, such as the will being
a natural one or being registered or executed in such
circumstances and ambience, as would leave no room
for suspicion, assume significance. If there is
nothing unnatural about the transaction and the
evidence adduced satisfies the requirement of proving
27
a will, the court would not return a finding of 'not
proved' merely on account of certain assumed
suspicion or supposition. Who are the persons
propounding and supporting a will as against the
person disputing the will and the pleadings of the
parties would be relevant and of significance.”
(emphasis supplied)
Vi) Pentakota Satyanarayana and others vs. Pentakota
Seetharatnam and others, (2005)8 SCC 67
The onus to prove and the manner of doing so in the case of
a will is explained and the presumption that may drawn on
Registration of the document is dealt with as follows :
“22. The above findings, in our opinion, are
erroneous. The trial Court also recorded wrongly a
finding that the Will was not revocable overlooking
the fact that in the very paragraph the testator
reserved his right to cancel the Will and execute
another Will. In our view, the findings of the High
Court and the trial Court are not only contrary to the
facts on record but also overlooked the law governing
the aspects of proof of Will. Section 68 of the Indian
Evidence Act, 1872 deals with proof of execution of
document required by law to be attested. This section
lays down that if the deed sought to be proved is a
28
document required by law to be attested and if there
be an attesting witness alive and subject to process of
the Court and capable of giving evidence, he must be
called to prove execution. Execution consists in
signing a document written out, read over and
understood and to go through the formalities
necessary for the validity of legal act. Section 63 of
the Indian Succession Act gives meaning of
attestation as under:-
"Section 63: Execution of unprivileged
will.- Every testator, not being a soldier
employed in an expedition or engaged in actual
warfare, or an airman so employed or engaged
or a mariner at sea, shall execute his will
according to the following rules:
(a) The testator shall sign or shall affix his
mark to the will, or it shall be signed by some
other person in his presence and by his
direction.
(b) The signature or mark of the testator, or
the signature of the person signing for him,
shall be so placed that it shall appear that it
was intended thereby to give effect to the
writing as will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator
sign or affix his mark to the will or has seen
some other person sign the will, in the presence
and by the direction of the testator, or has
received from the testator a personal
acknowledgment of his signature or mark, or of
the signature of such other person; and each of
the witnesses shall sign the will in the presence
of the testator, but it shall not be necessary that
more than one witness be present at the same
29
time, and no particular form of attestation shall
be necessary."
It is clear from the definition that the attesting
witness must state that each of the two witnesses has
seen the executor sign or affix his mark to the
instrument or has seen some other persons sign the
instrument in the presence and by the direction of the
executant. The witness should further state that each
of the attesting witnesses signed the instrument in the
presence of the executant. These are the ingredients
of attestation and they have to be proved by the
witnesses. The word 'execution' in Section 68 includes
attestation as required by law.
23. A perusal of Ex.B9 (in original) would show
that the signatures of the Registering Officer and of
the identifying witnesses affixed to the registration
endorsement were, in our opinion, sufficient
attestation within the meaning of the Act. The
endorsement by the sub-registrar that the executant
has acknowledged before him execution did also
amount to attestation. In the original document the
executants signature was taken by the sub-registrar.
The signature and thumb impression of the identifying
witnesses were also taken in the document. After all
this, the sub-registrar signed the deed. Unlike other
documents the Will speaks from the death of the
testator, and so, when it is propounded or produced
30
before a court, the testator who has already departed
the world cannot say whether it is his Will or not and
this aspect naturally introduces an element of
solemnity in the decision of the question as to whether
the document propounded is proved to be the last Will
and the testament of departed testator.
24. In the instant case, the propounders were
called upon to show by satisfactory evidence that the
Will was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of the
dispositions and put his signature to the document on
his own freewill. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts indicated above. It was argued by
learned counsel for the respondent that propounders
themselves took a prominent part in the execution of
the Will which confer on them substantial benefits. In
the instant case, the propounders who were required
to remove the said suspicion have let in clear and
satisfactory evidence. In the instant case, there was
unequivocal admission of the Will in the written
statement filed by P. Srirammurthy. In his written
statement, he has specifically averred that he had
executed the Will and also described the appellants as
his sons and Alla Kantamma as his wife as the
admission was found in the pleadings. The case of the
appellants cannot be thrown out. As already noticed,
31
the first defendant has specifically pleaded that he
had executed a Will in the year 1980 and such
admissions cannot be easily brushed aside. However,
the testator could not be examined as he was not alive
at the time of trial. All the witnesses deposed that they
had signed as identifying witnesses and that the
testator was in sound disposition of mind. Thus, in
our opinion, the appellants have discharged their
burden and established that the Will in question was
executed by Srirammurthy and Ex.B9 was his last
will. It is true that registration of the Will does not
dispense with the need of proving, execution and
attestation of a document which is required by law
to be proved in the manner as provided in Section 68
of the Evidence Act. The Registrar has made the
following particulars on Ex.B9 which was admitted
to registration, namely, the date, hour and place of
presentation of document for registration, the
signature of the person admitting the execution of
the Will and the signature of the identifying
witnesses. The document also contains the
signatures of the attesting witnesses and the scribe.
Such particulars are required to be endorsed by the
Registrar along with his signature and date of
document. A presumption by a reference to Section
114 of the Evidence Act shall arise to the effect that
particulars contained in the endorsement of
registration were regularly and duly performed and
32
are correctly recorded. In our opinion, the burden of
proof to prove the Will has been duly and
satisfactorily discharged by the appellants. The onus
is discharged by the propounder adducing prima
facie evidence proving the competence of the testator
and execution of the Will in the manner
contemplated by law. In such circumstances, the
onus shift to the contestant opposing the Will to
bring material on record meeting such prima facie
case in which event the onus shift back on the
propounder to satisfy the court affirmatively that the
testator did know well the contents of the Will and in
sound disposing capacity executed the same.”
Vii ) B. Venkatamuni vs. C.J.Ayodhya Ram Singh and others,
AIR 2007 SC 311
In reversing a decision of the High Court, in a case where
the will was found to be executed in compliance with the
statutory requirements, the apex court held that that by itself
would not be sufficient to sustain the same, where there were
suspicious circumstances. Reference was made to Surendra Pal
and Others, vs. Dr.(Mrs.)Saraswati Arora and another, (1974)2
SCC 600; H.Venkatachala Iyengar vs. B.N.Thimmajamma and
33
others, (1959) Supp.1 SCR 426; Smt. Guro vs. Atma Singh and
others, (1992)2 SCR 30; Daulat Ram and others vs. SOdha and
others, (2005)1 SCC 40, Meenakshiammal vs. Chandrasekaran,
(2005)1 SCC 280; Pentakota Satyanarayana and others vs.
Pentakota Seetharatnam, (2005)8 SCC 67. In particular, the apex
court has with reference to the last mentioned case of Pentakota
Satyanarayana, has expressed thus :
“ 22. The principle was reiterated in
Pentakota Satyanarayana and others vs.. Pentakota
Seetharatnam and others, (2005)8 SCC 67, wherein
it was stated:
“In the instant case, the propounders
were called upon to show by satisfactory
evidence that the will was signed by the testator,
that the testator at the relevant time was in a
sound and disposing state of mind, that he
understood the nature and effect of the
dispositions and put his signature to the
document of his own free will. In other words,
the onus on the propounder can be taken to be
discharged on proof of the essential facts
indicated above.”
23. However, having regard to the fact that
the Will was registered one and the propounder had
discharged the onus, it was held that in such
circumstances, the onus shifts to the contestant
opposing the Will to bring material on record
34
meeting such pram facie case in which event the
onus shifts back on the propounder to satisfy the
court affirmatively that the testator did not know
well the contents of the Will and in sound disposing
capacity executed the same.
24. Each case, however, must be
determined in the facts situation obtaining therein.
25. The Division Bench of the High
Court was, with respect, thus, entirely wrong in
proceeding on the premise that compliance of legal
formalities as regards proof of the Will would sub-
serve the purpose and the suspicious circumstances
surrounding the execution thereof is not of much
significance.
26. The suspicious circumstances
pointed out by the learned District Judge and the
learned Single Judge of the High Court, were
glaring on the face of the records. They could not
have been ignored by the Division Bench and in any
event, the Division Bench should have been slow in
interfering with the findings of fact arrived at by the
said court. It applied a wrong legal test and thus,
came to an erroneous decision.”
35
Viii) Anil Kak Vs. Kumari Sharada Raje and others, (2008)7
SCC 695
It is opined thus:
“52. Whereas execution of any other document can
be proved by proving the writings of the document or
the contents of it as also the execution thereof, in the
event there exists suspicious circumstances the party
seeking to obtain probate and/or letters of
administration with a copy of the will annexed must
also adduce evidence to the satisfaction of the court
before it can be accepted as genuine.”
This passage is again cited in the case of Bharpur Singh v.
Shamsher Singh, 2009(3) SCC 687, at . paragraph 20 thereof.
Ix) Gopal Swaroop Vs. Krishna Murari Manal and others,
(2010) 14 SCC 266
It is held thus :
“23. As was observed by this Court in H.
Venkatachala Iyengar V. B.N.Thimmajamma, (AIR
1959 SC443), in the matter of proof of documents
as in the case of the proof of wills, it is idle to
expect proof with mathematical certainty. The test
to be applied always is the test of satisfaction of a
prudent mind in such matters. Applying that test to
the case at hand we have no manner of doubt that
the will executed by Shri Panna Lal, which is a duly
registered document, is not surrounded by any
36
suspicious circumstances of any kind and is proved
to have been duly and properly executed.”
X) M.B.Ramesh (dead) by Lrs. Vs. K.M.Veeraje Urs (dead) by
Lrs. And others, (2013)7 SCC 490
The validity of a will was tested in a circumstance where an
attesting witness had not specifically stated in his evidence that he
had seen the other attesting witness sign the will in the presence of
the testatrix. However, the apex court held that having regard to
the fact that the said attesting witness had mentioned about the
presence of the other witness being present when the will was
written, has been held by implication and inference as proving the
required attestation by the other witness;
It is opined thus :
“27. The approach to be adopted in matters
concerning wills has been elucidated in a decision on a first
appeal by a Division Bench of Bombay High Court in
Vishnu Ramkrishna Vs. Nathu Vithal reported in [AIR 1949
Bombay 266]. In that matter, the respondent Nathu was the
beneficiary of the will. The appellant filed a suit claiming
possession of the property which was bequeathed in favour
of Nathu, by the testatrix Gangabai. The suit was defended
37
on the basis of the will, and it came to be dismissed, as the
will was held to be duly proved. In appeal it was submitted
that the dismissal of the suit was erroneous, because the will
was not proved to have been executed in the manner in
which it is required to be, under Section 63 of Indian
Succession Act. The High Court was of the view that if at all
there was any deficiency, it was because of not examining
more than one witness, though it was not convinced that the
testatrix Gangabai had not executed the will. The Court
remanded the matter for additional evidence under its
powers under Order 41 Rule 27 CPC. The observations of
Chagla C.J., sitting in the Division Bench with
Gajendragadkar J. (as he then was in Bombay High Court)
in paragraph 15 of the judgment are relevant for our
purpose:-
“15…We are dealing with the case of a will
and we must approach the problem as a Court of
Conscience. It is for us to be satisfied whether the
document put forward is the last will and testament
of Gangabai. If we find that the wishes of the
testatrix are likely to be defeated or thwarted
merely by reason of want of some technicality, we
as a Court of Conscience would not permit such a
thing to happen. We have not heard Mr. Dharap on
the other point; but assuming that Gangabai had a
sound and disposing mind and that she wanted to
dispose of her property as she in fact has done, the
mere fact that the propounders of the will were
negligent - and grossly negligent - in not complying
with the requirements of S.63 and proving the will
as they ought to have should not deter us from
calling for the necessary evidence in order to satisfy
ourselves whether the will was duly executed or
not”.
38
28. As stated by this Court also in R. Venkatachala
Iyengar, AIR 1959 SC 443 and Smt. Jaswant Kaur, (1977)1
SCC 369, while arriving at the finding as to whether the will
was duly executed, the Court must satisfy its conscience
having regard to the totality of circumstances. The Court’s
role in matters concerning the wills is limited to examining
whether the instrument propounded as the last will of the
deceased is or is not that by the testator, and whether it is
the product of the free and sound disposing mind [as
observed by this Court in paragraph 77 of Gurdev Kaur Vs.
Kaki reported in 2007(1) SCC 546]. In the present matter,
there is no dispute about these factors.“
Keeping in view the above settled principles, if we examine
the circumstances of the present case on hand, it is seen that the
plaintiff had produced the registered will of the testatrix, which
was more than 30 years old. Though Defendant no.1 had denied
the genuineness of the will in her written statement, and had also
cross-examined the plaintiff as regards the same, there is no
suspicious circumstance that is sought to be raised as to the
execution and registration of the same. The defendant no.1 had
not chosen to tender any evidence.
39
It would be 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 wills, it would be idle to expect proof with
mathematical certainty . The test to be applied would be the usual
test of satisfaction of the prudent mind in such matters.
The propounder is required to show by satisfactory
evidence that the will was signed by the testator or testatrix and
that he or she was in a sound and disposing state of mind and that
the nature and effect of the dispositions was understood and that
the signature was subscribed of his own free will. The onus on
the propounder can be taken to be discharged on proof of these
essential facts.
In the absence of examination of an attesting witness in the
instant case on hand, as one was dead and the whereabouts of the
other could not be traced, according to the plaintiff, the law
required in terms of Section 69 of the Evidence Act, that the
40
attestation of at least one attesting witness, was to be established
that it was in his handwriting and that the signature of the person
executing the document is in the handwriting of that person.
However, the plaintiff has candidly indicated that she was helpless
in that regard. As the document was of some antiquity and
significantly, in the cross-examination of the plaintiff, there is not
even a suggestion that the signature of the testatrix was forged or
that she was impersonated during the execution and registration of
the document, when the testatrix has been duly identified before
the Sub-Registrar and that authority has endorsed the same, as
found from Exhibit P.2. Further, the nature of disposition where
the testatrix has bequeathed her properties to defendant no.1 and
her children jointly , there is no inequity and it does not give rise
to any suspicion of the will being a concocted document. The
strict rule of proof though would normally have to be insisted
whether there is contest to the will or otherwise, if that is strictly
enforced in respect of a document that is of sufficient antiquity,
the benefit under Section 90 of the Evidence Act, is rendered a
41
dead letter and that is never the intent of the law. It may be that if
there are indeed any suspicious circumstances shown to be present
surrounding the execution of the will, the propounder must
remove the said suspicions from the mind of the court by cogent
and satisfactory evidence, and would not be permitted to seek
refuge under Section 90 of the Evidence Act.
There is nothing brought on record to doubt the competence
of the testatrix to make the will at the time when it was executed.
The onus is discharged by the propounder adducing prima facie
evidence proving the competence of the testatrix and execution of
the will in the manner contemplated by law. Defendant no. 1
ought to have brought material on record meeting such prima
facie case. In which event the onus would have shifted back on to
the propounder to satisfy the court affirmatively as to the
genuineness of the will, the due execution and registration thereof.
It is noticed that in Bharpur Singh’s case supra – which
was relied upon by the appellant, and other decisions of the apex
court, where the strict compliance with the requirement of the
42
manner in which a will shall be proved is insisted upon , are all
cases where there was serious contest as to the genuineness of the
will and there was material on record to indicate that the
document could not be readily accepted. Whereas for reasons
stated and in the light of other decisions which are referred to
hereinabove, the benefit of Section 90 of the Evidence Act cannot
be denied to the plaintiff.
The appellant is not entitled to any relief for yet another
reason. The conduct of defendants 1 to 3, is found wanting in
bona fides. It is evident that the said defendants have acted in
blatant disobedience and in flagrant violation of the order of
temporary injunction of the trial court in having alienated the suit
property in several parcels during the pendency of the suit.
Defendants 1 to 3 have in fact, claimed to have no subsisting
interest in the property. The several alienations subsequent to the
suit are hit by the doctrine of lis pendens and would not bind the
interest of the plaintiff. In view of the bequest under the will in
43
question having been established by the plaintiff, any alienation of
any portion of the suit property even prior to the suit would not
bind the interest of the plaintiff.
Incidentally, the first defendant has filed an application,
seeking to amend the written statement filed before the trial court,
before this court in this appeal. The contents of that application
further confound the case of defendant no.1.
The application was ordered to be heard along with the
main appeal. The proposed amendment is as follows :
“11(a): The suit schedule properties are the subject
matter of the registered Sale Deeds executed by this
defendant along with her deceased mother
Smt.Lakshmamma. All the 3 sale deeds are dated 11.8.1988
and registered as document Nos. 5838, 5839 and 5847 of
1988-89. Two of the sale deeds are in favour of Mrs.
Saidanbi and one sale deed is in favour of Mrs. Mubeen Taj.
Under the said sale deeds, the entire property is sold away
and the purchasers are placed in possession of the same.
Hence, the suit properties are not available for partition.
11(b): All the above said 3 sale deeds are executed
by this defendant and her deceased mother Smt.
Lakshmamma through their GPA Holder Sri. Naseer Khan
son of Mohamood Khan. The G.P.A. is dated 6.4.1988 and
44
is registered in the office of the Sub Registrar as document
No.9/1988-89.
11(c): Since Lakshmamma, the owner of the suit
schedule properties executed the aforementioned sale deeds,
thus conveying the suit property in favour of the purchaser,
the Will dated 20.2.1971 relied on by the plaintiff stood
automatically revoked and annulled and therefore, plaintiff
cannot maintain any suit on the basis of the said Will. This
defendant respectfully submits that the contention urged in
this para is without prejudice to all other contentions urged
by her, disputing the Will in question.
11(d): Since the suit properties are already sold
away in favour of the purchasers mentioned above and since
it is the purchasers who are in possession of the suit
schedule property, they are necessary parties to the suit and
hence the suit is liable to be dismissed for this reason also.”
It is evident that the defendant seeks to set up a totally
contradictory defence by virtue of the said proposed amendment.
In that, it was the defendant’s categorical stand that she was in
possession of the suit property as on the date of filing of the
written statement. Though inconsistent pleas are permissible, by
way of pleadings, the same ought to be mutually exclusive and
sustainable. On the other hand, the proposed amendment would
45
be fatal to the case of the defendant and cannot be permitted. The
said application is rejected.
The appellant’s application to file additional evidence is
again in support of the proposed amendment and the same cannot
be permitted. The reasons assigned in support of both the above
applications one not tenable and cannot be accepted. The said
applications are summarily rejected.
In the light of the above, the appeal is dismissed. The
judgment of the trial court is affirmed, in the light of the reasoning
hereinabove.
Sd/-
JUDGE
nv*