1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF MARCH, 2023 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.S.A. NO.697/2018 (PAR) BETWEEN: MR. SREENIVASMURTHY S/O. LATE MR. VENKATAPPA, AGED ABOUT31YEARS, RESIDING AT L.H. PALYA, KALLAMBELLA POST, SIRA TALUK, TUMAKURU DISTRICT-572 214. … APPELLANT (BY SRI THONTADHARYA R.K., ADVOCATE) AND:
1. . MS. LAKSHMAMMA W/O. OMKARA MURTHY, AGED ABOUT42YEARS, D/O. LATE KAMAIAH, RESIDING AT DODDABIDARE, C.H. HALLI TALUK, TUMAKURU DISTRICT-572 214. 2 . MS. VASANTHAMMA W/O. KEMPAIAH, D/O. LATE KAMAIAH, AGED ABOUT38YEARS, RESIDING AT ALLAGHATTA VILLAGE, GUBBI TALUK, TUMAKURU DISTRICT-572 216. 2 3 . MRS. THAYAMMA W/O. VENKATAPPA, AGED ABOUT53YEARS, RESIDING AT L.H. PALYA, KALLAMBELLA HOBLI, SIRA TALUK, TUMAKURU DISTRICT-572 137. 4 . MR. LOKESHA S/O. VENKATAPPA, AGED ABOUT25YEARS, RESIDING AT L.H. PALYA, KALLAMBELLA HOBLI, SIRA TALUK, TUMAKURU DISTRICT-572 137. 5 . MRS. NETHRAVATHI W/O. SHANKARAPPA, AGED ABOUT28YEARS, RESIDING AT BUKKAPATNA, SIRA TALUK, TUMAKURU DISTRICT-572 137. 6 . MEENAKSHAMMA W/O. LATE KAMAIAH, AGED ABOUT56YEARS, RESIDING AT L.H. PALYA, KALLAMBALLA HOBLI, SIRA TALUK, TUMAKURU DISTRICT-572 137. … RESPONDENTS (BY SRI M.R.RAJAGOPAL, SENIOR COUNSEL FOR SRI M.S.DEVARAJU, ADVOCATE FOR R1, R2 & R6; SRI M.R.HARISH KUMAR, ADVOCATE FOR R3 TO R5; SRI J.GIRIRAJ, ADVOCATE FOR R6) THIS R.S.A. IS FILED UNDER SECTION100OF CPC., AGAINST THE
JUDGMENTAND DECREE DATED2911.2017 PASSED IN R.A.NO.14/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE
JUDGMENTAND DECREE DATED2711.2015 3 PASSED IN O.S.NO.98/2009 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, SIRA. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON0603.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
This second appeal is filed by defendant No.2 challenging the judgment and decree passed in O.S.No.98/2009 dated 27.11.2015 and judgment and decree passed in R.A.No.14/2016 dated 29.11.2017 questioning granting of share in favour of the plaintiffs in the suit schedule properties.
2. The factual matrix of the case of the plaintiffs before the Trial Court is that, one Sri Lakkanna of L.H. Palya had two sons through his wife Lakshmamma and the first son by name Kamanna is no more. The plaintiff Nos.1 and 2 are the daughters of said Kamanna and defendant No.5 is the mother of plaintiff Nos.1 and 2. Since, the defendant No.5 is not in good terms with the plaintiffs and acting detrimental to the interest of the plaintiff, she is arrayed as defendant No.5 in the suit. The defendant No.1 is the wife of late Venkatappa, the defendant Nos.2 and 3 are the sons and defendant No.4 is the daughter of 4 late Venkatappa. The plaintiffs and defendants constitute Hindu Undivided joint family. The suit properties are the joint family properties of the plaintiffs and defendants and they are in joint possession and enjoyment of the same. The father and uncle of the plaintiffs are no more. As such, the defendant No.2 being the eldest male member in the family of the defendants, has got changed the khatha of suit properties into his name behind the back of the plaintiffs, in order to knock off the valuable properties and to deprive the plaintiffs from getting their legitimate share in the suit properties. It is contended that the alleged Will dated 08.06.1993 executed by Lakkanna @ Lakkashetty in favour of defendant No.2 is created and concocted by the defendant Nos.1 to 3 for the purpose of this suit and to deprive the plaintiffs from their legitimate share in the suit properties and it does not binds the plaintiffs’ share in the suit properties. It is contended that the plaintiffs demanded the defendants to partition the suit properties and to allot their legitimate share but, the defendants refused to allot the share. Hence, without any other alternative, filed the suit seeking the relief of partition. 5
3. In pursuance of the suit summons, the defendant Nos.1 to 3 appeared before the Court through their counsel and defendant Nos.1 and 2 filed their written statement. The defendant No.3 filed a memo adopting the written statement of defendant Nos.1 and 2. The defendant No.4 has not appeared before the Court and hence, placed exparte. Though the defendant No.5 has appeared before the Court, he has not filed any written statement, inspite of sufficient opportunity being given. Hence, written statement of defendant No.5 is taken as nil.
4. The defendant Nos.1 to 3 filed the written statement admitting the relationship between the parties. But, they denied the fact that the plaintiffs and defendants constitute Hindu Undivided joint family and the suit properties are joint family properties of parties to the suit and they are in joint possession and enjoyment of the same. The defendant Nos.1 to 3 admitted the fact that the father of the plaintiffs and their uncle are no more. It is contended that item No.1 of the suit schedule properties is an agricultural land and the same originally belongs 6 to the Government and the same was enjoyed by the grand- father of the plaintiffs and defendant Nos.2 to 4 by name Lakkanna and he was also called as Lakkanna @ Lakkappa @ Lakkashetty. During his lifetime, he was unauthorisedly cultivating the suit item No.1 land and the same was regularized and granted by the Government to him. Since then, he is the absolute owner in possession of suit item No.1 property and the same his self-acquired property. During his life time, when he was in sound state of mind, he executed a registered Will dated 08.06.1993 in favour of defendant No.2. The said Will came into operation on 02.10.1995 when the said Lakkanna died. Since then, the defendant No.2 and his father were in possession and enjoyment of suit item No.1 of the property. Such being the case, the revenue authorities colluding with defendant No.5 namely, Meenakshamma, W/o. late Kamaiah, have got changed the katha and RTC and when the same came to the knowledge of father of defendant No.2, he preferred an appeal against the impugned order passed before Assistant Commissioner, Madhugiri and the said appeal was allowed and the revenue authorities have changed the khatha and RTC in the name of 7 defendant No.2 and his father. After the death of father of defendant No.2, the revenue entries changed into the name of defendant Nos.1 and 2. The defendant No.1 is the mother of defendant No.2 and she has no right in suit item No.1 of the property. The plaintiffs or the defendant Nos.1, 3 to 5 have no manner of right or possession over suit item No.1 of the property. Hence, prayed the Court to dismiss the suit.
5. The Trial Court, having considered the pleadings of the parties, in total, framed 8 issues for consideration. The plaintiffs examined the plaintiff No.1 as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P4. On the other hand, the defendants examined defendant No.2 as D.W.1 and examined four witnesses as D.Ws.2 to 5 and got marked the documents as Exs.D1 to D50.
6. The Trial Court, after considering both oral and documentary evidence placed on record, answered issue Nos.1 to 4 in ‘affirmative’, in coming to the conclusion that the plaintiffs have proved that they are the members of the joint family and suit schedule properties are joint family properties 8 and they are entitled for 2/5th share in the suit schedule properties and defendant Nos.1 and 2 have also proved that item No.1 of the suit schedule properties is a self-acquired property of Lakkappa @ Lakkanna @ Lakkashetty but, answered issue No.5 in ‘negative’ with regard to execution of registered Will dated 08.06.1993 and answered issue No.6 in ‘partly affirmative’ that the defendant Nos.1 and 2 have proved that defendant Nos.1 to 4 are in possession of suit schedule item No.2 of the property and answered issue No.7 in ‘negative’, in coming to the conclusion that the suit is not barred by limitation and the plaintiffs are entitled for the relief, as sought.
7. Being aggrieved by the judgment and decree of the Trial Court, the defendant No.2 has filed an appeal in R.A.No.14/2016, wherein it is contended that the Trial Court committed an error in granting the decree and contend that the judgment and decree passed by the Trial Court is erroneous, illegal and opposed to law and it calls for interference. It is also contended that the Trial Court has not appreciated both oral and documentary evidence placed on record by the plaintiffs and 9 defendants in a proper perspective and erroneously answered the issues against the defendants and decreed the suit and the very approach of the Trial Court is erroneous. Hence, the First Appellate Court also formulated the points whether the judgment and decree of the Trial Court is erroneous, illegal and opposed to law. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, answered the said point as ‘partly affirmative’. However, confirmed the judgment and decree of the Trial Court, modifying the shares of plaintiff Nos.1 and 2 and also the defendants. Being aggrieved by the judgment and decree of both the Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court.
8. The main contention urged in the appeal by the appellant-defendant No.1 is that, both the Courts committed an error in coming to the conclusion that the suit schedule properties are the joint family properties and the finding is contrary to the documentary evidence placed by the appellant especially, Ex.D1-Record of Rights, Ex-D2-Index of land and 10 Ex.D3-Mutation Register Extract in the name of Mr. Lakkanna @ Lakka Shetty which clearly establish the fact that the suit schedule item No.1 of the property was granted to Mr. Lakkanna @ Lakka Shetty and he enjoyed the same as his self-acquired property. The counsel also would contend that both the Courts committed an error in coming to the conclusion that Will has not been proved and both the Courts ought to have taken note of the fact that Will dated 08.06.1993 is a registered document and the appellant-defendant No.2 has examined the brother of one of the attesting witness to identify his brother’s writing/signature in the Will as per Section 69 of the Indian Evidence Act, as the attesting witness to the Will are not alive on the date of filing of the suit. It is also contended that the First Appellate Court also grossly erred in concluding that the appellant has failed to examine one Mr. Puttarangaiah, one of the attesting witness to the Will, when Ex.D48-Death Certificate of said Mr. Puttarangaiah establish that he died on 07.09.1998 and he was not alive as on the date of filing of the suit or on the date of examination of D.W.2, who is the brother of said Mr. Puttarangaiah. The counsel would vehemently contend that, 11 when the witnesses have been examined in terms of Section 69 of the Indian Evidence Act as D.Ws.2 to 5, the Trial Court as well as the First Appellate Court ought not to have come to the conclusion that Will has not been proved.
9. Based on the grounds urged by the appellant- defendant No.2 in the second appeal, this Court has framed the following substantial questions of law: i) Whether the First Appellate Court is justified in concluding that the defendant Nos.1 and 2 have failed to prove the registered Will dated 08.06.1993, ignoring the oral evidence on record in terms of Section 69 of the Indian Evidence Act?. ii) Whether the First Appellate Court has erred in re-appreciating the evidence of the brother of Mr. Puttarangaiah, who was the attesting witness to the Will, Ex.D6?.
10. Learned counsel appearing for the appellant- defendant No.2 in his argument, in support of the grounds urged in the appeal and also framing of substantial questions of law would vehemently contend that, Sy.No.6 was re-numbered as 12 Sy.No.68 and to an extent of 8 acres, 23 guntas of land was granted in favour of Lakkanna and item No.2 of the suit schedule properties is a residential house. The counsel would submit that the Will which was propounded in favour of the appellant herein is dated 08.06.1993 and the same was registered and the said Lakkanna passed away in the year 1995 and subsequently, the documents have been changed in the name of the appellant, who has been examined as D.W.1 and he also examined a witness as D.W.2, who is the brother of the attesting witness since, the attesting witness was no more. D.W.3 is the scribe and D.W.4 is the son of another attesting witness, who has been examined and in order to prove the Will in terms of Section 69 of the Evidence Act, D.Ws.2 and 4 have been examined before the Court. D.W.5 is an independent witness, who has spoken about the possession of the appellant and inspite of the fact that Will has been proved, both the Courts committed an error in coming to the conclusion that the same has not been proved. It is not disputed by the plaintiffs that grant made in favour of Lakkanna is in favour of the family and when there was no pleadings in the plaint, the Trial Court ought not to have come to the conclusion 13 that the suit schedule properties are the joint family properties. The very approach of the First Appellate Court that the attesting witnesses were alive is not correct and inspite of the death certificate which has been produced before the Court as Ex.D48, the said observation is made. The finding given by both the Courts that Will is surrounded by suspicious circumstance is against the material on record and committed an error in decreeing the suit. The counsel also would submit that the First Appellate Court is not justified in coming to the conclusion that the defendant Nos.1 and 2 have failed to prove the registered Will dated 08.06.1993 ignoring the oral evidence on record in terms of Section 69 of the Indian Evidence Act, inspite of the fact that witnesses have been examined. The counsel also would submit that the First Appellate Court erred in re-appreciating the evidence of brother of Puttarangaiah, who was attesting witness to Ex-D6-Will. Hence, it requires interference of this Court.
11. The learned counsel for the appellant-defendant No.2 in support of his argument, relied upon the judgment of the Apex Court in V. KALYANASWAMY (D) BY LRS. AND14ANOTHER VS. L. BAKTHAVATSALAM (D) BY LRS. AND OTHERS reported in 2020 SCC ONLINE SC584and brought to notice of this Court Para No.84, wherein the Apex Court has discussed with regard to Sections 68 and 69 of the Evidence Act, wherein it is observed that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting.
12. The counsel also relied upon the judgment of this Court in VASANT H. JAYAWANT BHASME AND OTHERS VS. SHANKARARAO BHIMRAO BHASME, SINCE DECEASED BY HIS LRS. reported in ILR2017KAR5433and brought to notice of this Court Para Nos.15 and 16, wherein this Court has discussed that Section 68 of the Act is very clear about the procedure to be followed for proving the Will if the attestors are available. If the attestors are not available, Section 69 of the Act comes into picture. The requirement of Section 69 of the Act is providing proof to the effect that attestation of one attesting witnesses is at least in his (attestor’s) handwriting and signature 15 of the person executing the document is in the handwriting of that person (executor). The counsel also brought to notice of this Court Para Nos.27 and 30, wherein this Court has discussed with regard to Section 69 of the Evidence Act and it is observed therein that he had an occasion to see the signature of Krishnaji, and therefore, he can identify the signature and if the attestors are no more, the situation may arise that the propounder of the Will finds it difficult to prove the Will either in accordance with Sections 68 and 69 of the Act. He may not be in a position to examine attestors because of their non-availability owing to passage of time, as has happened in this case.
13. The counsel referring these judgments would vehemently contend that the appellant-defendant No.2 has proved the very execution of the Will by said Lakkanna by examining the persons, who are having acquaintance with the signature of the attesting witnesses. Hence, both the Courts ought not to have disbelieved the execution of the Will.
14. Per contra, learned counsels appearing for the respondents-plaintiffs in their argument vehemently contend 16 that, according to appellant-defendant No.2, the Will was executed on 08.06.1993. Both the Courts held that the very execution of the Will has not been proved. The counsel also brought to notice of this Court Para No.6(a) of the plaint, wherein the plaintiffs have categorically denied the very execution of the Will. The defendants also, in the written statement in Para No.10, contend that item No.1 of the property is a granted land in favour of Lakkanna. The counsel also brought to notice of this Court that, in the alleged Will, a reference has been made that, item No.1 of the property is a purchased land but, it is an admitted fact that land was granted in favour of Lakkanna. The counsel would vehemently contend that, while executing the Will, said Lakkanna has not made any provision to his wife, grand-daughters through the first son and grand-son and daughter through the second son. Hence, the Will is surrounded by suspicious circumstances. The counsel would contend that, Section 69 of the Indian Succession Act is very clear that, even if no attesting witnesses are available, the persons, who are having acquaintance with the signature of attesting witnesses have to be examined and the attestor’s 17 signature has to be placed before the Court to prove the fact that they used to make similar signature.
15. The counsel also brought to notice of this Court Section 3 – Interpretation Clause of the Transfer of Property Act, 1882, wherein it is provided with regard to attestation is concerned and the word ‘attested’ is defined as follows: “attested”, is in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
16. The counsel, referring this provision would vehemently contend that the definition with regard to attestation 18 is very clear that the same has to be proved by examining the persons, who are having acquaintance with the signature of the attestors. The counsel would vehemently contend that the appellant has not satisfied with regard to the attestation is concerned by examining the witnesses and no doubt, the attesting witnesses are no more, but their legal heirs have to be examined. However, D.W.2 is not the son of the attestor but, he is the brother of the attestor and he has not produced any document containing the signature of the attestor. The other witness, who has been examined as D.W.4 though is the son of one of the attestor, he has also not produced any document containing the signature of his father. Hence, both the Courts rightly comes to the conclusion that the Will has not been proved.
17. The second count of argument of learned counsel appearing for the respondents before this Court is that, in the document of Will, it is mentioned that the property was purchased but, if really the said Lakkanna, who is the executor of the Will had given instructions, the same would have been 19 mentioned that the property has been granted in his favour. However, it is mentioned that the property is purchased, though it is a grant land and hence, it is clear that the executor was not having sound state of mind and he has not given any instructions. The counsel also would submit that the son and grand-daughters are not the beneficiaries and one of the grand- son is the beneficiary under the Will and no reason is assigned for exclusion of others while executing the Will. The Trial Court, in Para No.11, in detail discussed the suspicious circumstances and the First Appellate Court also, in Para Nos.16 and 17, in detail discussed with regard to the suspicious circumstances. Hence, it does not require any interference and no perversity in the findings of the Trial Court as well as the First Appellate Court. 18 Learned counsels appearing for the respondents also in support of their argument, relied upon the judgment in BHARPUR SINGH AND OTHERS VS. SHAMSHET SINGH reported in (2009) 3 SCC687and brought to notice of this Court Para No.23 with regard to the genuineness of the Will and 20 suspicious circumstances and burden is on the propounder and he should remove all suspicious circumstances shrouding the making of the Will by cogent and convincing explanation. The Apex Court also, in Para No.23, has explained about the suspicious circumstances surrounded in the execution of the Will. The counsel mainly relied upon the third suspicious circumstance that the disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason and also brought notice of this Court with regard to fourth and eighth suspicious circumstance that the dispositions may not appear to be the result of the testator’s free Will and mind and incorrect recitals of essential facts. The counsel would vehemently contend that, in the case hand also, disinheritance and sound state of mind has not been properly explained and so also, incorrect recitals of essential facts in the Will has not been explained and the attestation of Will has not been proved. Hence, this judgment is aptly applicable to the case on hand. 21
19. The counsel also relied upon the judgment in RAMESH VERMA (DEAD) THROUGH LEGAL REPRESENTATIVES VS. LAJESH SAXENA (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER reported in (2017) 1 SCC257and brought to notice of this Court Para No.13, wherein the Apex Court has discussed with regard to Section 68 of the Evidence Act and also Succession Act, 1925, wherein, it is observed that the propounder of the Will is 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 disposition and put his signature to the document on his own free Will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. The counsel would contend that, even the opposition party, not denied the execution of the Will and it is mandatory 22 on the part of the propounder of the Will to prove the Will under Section 68 of the Evidence Act.
20. The counsel also relied upon the judgment of the Apex Court in BALATHANDAYUTHAM AND ANOTHER VS. EZHILARASAN reported in (2010) 5 SCC770and brought to notice of this Court Para No.8 with regard to proving of Will whether it is denied or not and also brought to notice of this Court Para No.14 that when a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and in a case where the testator’s mind is feeble and he is debilitated and there is no sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of the testator’s free Will and mind, the Court may consider that the Will in question is encircled by suspicious circumstances.
21. The counsel referring these judgments would vehemently contend that, when both the Courts have come to 23 the conclusion that the Will is surrounded by suspicious circumstances, this Court in the second appeal cannot reverse the finding of the Trial Court and this Court can exercise the powers under Section 100 of C.P.C., only if there is any perversity found in not accepting the case of the plaintiffs and in such circumstance, the Court can reverse the findings and the substantial questions of law framed by this Court has not been proved by the appellant by placing cogent material and not placed any material regarding ignorance of the evidence of the witnesses. Hence, it does not require any interference.
22. In reply to the argument of the learned counsel for the respondents-plaintiffs, learned counsel appearing for the appellant-defendant No.2 would vehemently contend that both the Courts failed to appreciate the material on record and no such suspicious circumstances is found and Ex.D6 is very clear that wife was not alive and the very contention that no provision is made to wife cannot be accepted and when the Will is not surrounded by suspicious circumstances, the Trial Court ought to have dismissed the suit. 24
23. Having heard the respective counsel and also in view of substantial questions of law framed by this Court while admitting the appeal, this Court has to examine the material on record whether both the Courts committed an error in not accepting the Will. Having considered both oral and documentary evidence placed on record, the very first substantial question of law framed by this Court is whether the First Appellate Court is justified in concluding that the defendant Nos.1 and 2 have failed to prove the registered Will dated 08.06.1993, ignoring the oral evidence on record in terms of Section 69 of the Indian Evidence Act.
24. No doubt, in the case on hand, both the attesting witnesses are no more, the defendant No.2, who has examined himself as D.W.1 examined two witnesses particularly, D.W.2 in order to prove the Will in terms of Section 69 of the Evidence Act. D.W.2-Puttarangaiah, who is the brother of the attesting witness, in his evidence deposed that he had seen the registered Will and also identifies the signature of his brother and deposes that his brother passed away 14 to 15 years ago and he was 25 having one son and he also went to Tamilnadu but, he did not turn up and whereabouts of the son of Puttarangaiah is not known. He was subjected to cross-examination. In the cross- examination, he admits that, he does not know reading and writing and also he cannot identify the words and signature and he also cannot tell in which language, his brother was making the signature. Later, again, he says that his brother was making the signature in ‘English’ and also says that he cannot tell, why he has signed the said document. He also admits that, defendant No.2 brought him to Court to give evidence. He also admits that, he has not produced any document having similar signature of his brother.
25. The other witness is D.W.4, who is the son of another attesting witness. In his evidence, he says that, his father was present while executing the Will and he has put his left thumb impression and during his life time, he was telling the same and his father passed away on 22.02.2013. He was also subjected to cross-examination. In the cross-examination, he admits that, in order to prove that he is the son of Narayanappa, 26 he has not produced any document and he is also knows the defendants from the last 10 to 12 years. He also admits that, he cannot tell the boundary of item No.1 of the suit schedule properties. He also admits that he has not produced any document having similar signature made by his father before the Court.
26. The other witness is the scribe, who has been examined as D.W.3. In his evidence, he says that, Lakkanna came to him 20 years back and told him to prepare a Will and based on his instructions, he got typed the Will. The said Lakkanna, after making him to read the Will has put his left thumb impression and witnesses have also signed the same and he put his signature as scribe and the same was registered in the office of Sub-Registrar. In the cross-examination, he admits that, said Lakkanna was not known to him prior to execution of the said Will and he did not verify any document that he himself is the Luttahanumanapalya Lakkanna. He came along with Narayanappa and Puttarangaih and the said attesting witnesses have also not produced any document that he is Lakkanna but, 27 they gave information that he was having two children. But, he also did not see any document to that effect. He also did not see how he got the subject matter of the Will property but, he says that, by seeing the pahani, he came to know that the same is a self-acquired property. He also admits that, while executing the Will in respect of joint family property, there is a restriction and he also admits that, while preparing the Will, he has to maintain the register. But, he says that, he used to produce the same to the Registrar office. He claims that, while approaching him, said Lakkamma came along with the stamp paper and he cannot tell the value of the stamp paper and when he prepared the same. He admits that, while preparing the Will, he has mentioned that the said property was purchased by Lakkanna and he cannot tell, when he had purchased the same and for what consideration, he has purchased the same and the same is not mentioned in the Will and generally, the sale consideration will be mentioned in the said document. But, witness volunteers to state that, if information is given, the same will be mentioned in the document. However, he admits that the recitals of the Will would be based on the information given by the parties and 28 if necessary, they used to see the documents. He admits that, while preparing the document of Will as per Ex.D6, it was mentioned that property was purchased by Lakkanna but, he did not verify any records and no details were mentioned in Ex.D6.
27. The other witness is D.W.1, who is the beneficiary under the Will. In his evidence, he reiterated the contents of the written statement. In the cross-examination, he admits the relationship between the parties and admits that defendant No.1 is still alive. He also admits that, in respect of the suit schedule properties, there was no partition between the plaintiffs and defendants. He also admits that, his grand-father lost his vision at the time of his death. He also admits that, after the death of his grand-father, in the RTC, name of the mother of the plaintiffs and his name are jointly entered. But, he says that , in collusion with the revenue officials, the said entries are made. It is also elicited in the cross-examination that the Will was written on the instructions of his father and also he is not aware as to who were all present at the time of executing the Will and also he cannot tell the timings. 29
28. Having heard the respective counsel and also on perusal of the material available on record, it is not in dispute that the Will was a registered Will and D.W.3 is the scribe of the Will. It is also not in dispute that both the attestors were not alive and D.W.1 examined a witness as D.W.2 i.e., the brother of the attesting witness and in the cross-examination, he admits that he was not having acquaintance with the signature of his brother. The son of the attesting witness has not been examined and his brother has been examined as D.W.2, who says that son of D.W.2 is staying at Tamilnadu. It is important to note that, D.W.2 categorically admits that he does not know reading and writing and also he cannot identify the words and signature. He further admits that he cannot say in which language his brother was signing but, later, he says that his brother was signing in ‘English’. He also categorically admits that defendant No.2 brought him to Court to give evidence and he has not produced any document having similar signature of his brother before the Court. 30
29. Having taken note of these admissions, it is evident that the witness, who has been examined as D.W.2 was not having acquaintance with the signature of his brother and even, he does not know in which language his brother was signing the document and further, even, he cannot identify the words and signature and when he was brought by defendant No.2 to give evidence, his evidence cannot be accepted in terms of Section 69 of the Evidence Act.
30. The other witness is D.W.4 and he also, in the cross- examination categorically admits that, he has not produced any document to show that he is the son of the attesting witness, Narayanappa and says that he is having acquaintance with defendants from the last 10 to 12 years and he also says that Sy.No.68 is measuring 8 acres, 23 guntas but, he does not know the boundaries. He also categorically admits that he has not produced any document having similar thumb impression of his father before the Court and the evidence of D.W.4 also not helps the defendants in proving the Will in terms of Section 69 of the Evidence Act. With regard to proving of execution of the Will in 31 terms of Section 68, the defendant No.2 examined himself as D.W.1 and he was not present at the time of execution of the Will but, he categorically admits that his father gave instructions to prepare the Will and he also categorically admits that his grand-father lost vision at the time of his death and there was no partition between the plaintiffs and the defendants in respect of the suit schedule properties. He also categorically admits that, his father has studied to certain extent and the father of the plaintiffs were not aware of reading and hence, the Court has to take note of the evidence available on record in toto and the evidence of D.W.1 also not inspires the confidence of the Court with regard to execution of the Will.
31. Apart from that, D.W.3, who is the scribe, in his evidence though claims that he got it typed the Will and obtained the signature of the testator, but he categorically admits that, he was not having acquaintance with the executor prior to the execution of the document of Will. He also admits that he did not see any of the records while preparing the Will but, he admits that, in the Will, he has mentioned that the property is 32 purchased by Lakkanna and claims that instruction was given by said Lakkanna. He also admits that he did not see the nature of acquisition of property by the said executor Lakkanna and he also claims that, while coming to him, he himself brought the stamp paper and he cannot tell the timings of execution of the said document and he categorically admits that, in the Will, the recital is that said Lakkanna had purchased the property and he does not know from whom and for what consideration he has purchased the property and the same is not mentioned in the Will. But, he admits that, Will is prepared based on the information of the parties. Apart from that, they also look into the document but, the fact is that the subject matter of the Will i.e., item No.1 of the property was granted in favour of Lakkanna and no explanation with regard to why it was mentioned that the same was purchased. Hence, both the Courts have not believed the Will and the recitals of the Will is against the material on record.
32. Though the appellant-defendant No.2 claims that, in the Will, it has been mentioned that the properties are ancestral 33 properties and they got divided among the children, but which property is given to whom is not stated in the Will. Hence, taking note of the material on record, both the Trial Court as well as the First Appellate Court rightly comes to the conclusion that the Will has not been proved. No doubt, this Court has framed substantial questions of law, but in order to answer the same as ‘affirmative’, I do not find any material ignored by the Trial Court i.e., oral evidence on record in terms of Section 69 of the Indian Evidence Act and the contention that the First Appellate Court also erred in re-appreciating the evidence of brother of Mr. Puttarangaiah, who was one of the attesting witness to Ex.D6 also not properly appreciated cannot be accepted.
33. I have already pointed out that, in the cross- examination of brother of Mr. Puttarangaiah, who has been examined as D.W.2, he categorically admits that, he cannot identify the words and signature of anybody and when, he was examined, he was unable to identify the words as well as signature, the very identification of signature of his brother 34 cannot be accepted. The said evidence is also not in consonance with Section 69 of the Evidence Act and if the attesting witnesses are not found and are not alive, the same has to be proved that attestation of one attesting witnesses is at least in his handwriting and signature of the person executing the document is in the handwriting of that person and such ingredients of Section 69 of the Evidence Act has not been proved by the defendant No.2 and mere examination of brother of one of the attesting witness and son of the attesting witness is not sufficient, unless the witnesses, who have been examined before the Court are having acquaintance with the signature or words of the attesting witnesses.
34. The counsel for the respondents also rightly pointed out Section 3 of the Transfer of Property Act with regard to the attestation is concerned. When such materials are considered by both the Trial Court as well as the First Appellate Court, I do not find any error committed by the Trial Court and the First Appellate Court in not accepting the Will. The learned counsel appearing for the respondents also brought to notice of this 35 Court the principles laid down in the judgment referred (supra) in BHARPUR SINGH’s case with regard to doubtful and suspicious circumstances. First of all, incorrect recitals of essential facts are found in the document of Will and apart from that, disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. Admittedly, the executant was having two sons and out of which, first son was not having male issues and the first son passed away and he left his wife though, his wife and two daughters were alive. Apart from that, alleged Will was executed in favour of defendant No.2 and by that time, defendant No.1 and also sister and brother were also alive and what made to execute the Will in favour of defendant No.2 has not been properly explained and the very disinheritance of the property excluding the other members of the family also gives room for suspicious circumstance and these are the factors, which have been taken note by the Trial Court as well as the First Appellate Court and this judgment is aptly applicable to the case on hand, since the very genuineness of the execution of the Will is doubtful and 36 there are suspicious circumstances and burden lies on the defendant No.2, who propounded the Will to remove all suspicious circumstances shrouding the making of Will by cogent and convincing explanation and no such explanation is given by the defendant No.2 to accept his contention that Will was executed in his favour.
35. The other judgment relied upon by the learned counsel appearing for the respondents is also applicable to the facts of the case on hand since, the very making of the Will is shrouded with suspicious circumstance as held in the judgment referred (supra) in BALATHANDAYUTHAM’s case, wherein in Para No.14, the Apex Court has discussed with regard to the Will surrounded by suspicious circumstances. In the other judgment relied upon by the learned counsel appearing for the respondents in RAMESH VERMA’s case referred (supra), the Apex Court, in Para No.13 discussed with regard to proving of execution of Will by satisfactory evidence that the Will was signed by the testator and attesting witness and not proved the 37 Will under Sections 68 and 69 of the Evidence Act. Sections 68 and 69 of the Indian Evidence Act reads as under: “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.].
69. Proof where no attesting witness found. – If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.” 38 36. No doubt, learned counsel appearing for the appellant-defendant No.2 relied upon the judgment in V.KALYANASWAMY’s case referred (supra) and brought to notice of this Court Para No.84, the same is in respect of execution of document of Will and no doubt, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act and the same will not come to the aid of the appellant.
37. The other judgment relied upon by the learned counsel for the appellant in VASANT H. JAYAWANT BHASME’s case, referred (supra) i.e., Para Nos.15 and 16 relied upon by the counsel is with regard to the examination of attesting witnesses and those persons, who are having acquaintance with the signature of the attesting witnesses can speak. But, in the case on hand, though examined some of the witnesses, they failed to prove the Will in terms of Section 69 of the Evidence 39 Act. Hence, I do not find any merit in the appeal to reverse the concurrent findings of the Trial Court as well as the First Appellate Court. Therefore, I answer first substantial question of law framed by this Court as ‘affirmative’ and second substantial question of law as ‘negative’.
38. In view of the discussions made above, I pass the following:
ORDERThe appeal is dismissed. Sd/- JUDGE ST