1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF JULY, 2024 R PRESENT THE HON'BLE MR. JUSTICE KRISHNA S DIXIT AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR REGULAR FIRST APPEAL NO.1228 of 2009 (PAR) BETWEEN: MR. SHIVANANDA SHENOY S/O LATE K. NARAYANA SHENOY AGED48YEARS C/O DINESH RICE MILL COMPOUND MAIN ROAD KULAI, MANGALORE …APPELLANT (BY SRI. P.P. HEGDE, SENIOR COUNSEL A/W SRI. R.B. DESHPANDE, ADVOCATE [PH].) AND:
1. MR. NITHYANANDA SHENOY S/O LATE K. NARAYANA SHENOY AGED45YEARS RESIDING AT SRI DURGA FURNITURE, LAXMI DAYA BUILDING KINNIGOLI2 SMT. ASHA @ GEETHA KAMATH W/O GANESH KAMATH AGED50YEARS RESIDING AT LAXMI DAYA SATTAR COMPOUND SALMARA P.O., KARKALA TALUK ALSO AT KAMAL NIVAS D.NO.32371, BEHIND HASSAN CENTRE2OPP: SRI RAJARAJESHWARI TEMPLE ROAD PUTTUR, MANGALORE TALUK …RESPONDENTS (BY SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR R1; R2-SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SEC96R/W
ORDERXLI RULE1OF CPC., AGAINST THE
JUDGMENTAND DECREE DATED810.2009 PASSED IN OS.NO.134/2006 (OLD NO.73/1999) ON THE FILE OF THE CIVIL JUDGE (SR.DN) & ACJM, KARKALA, DISMISSING THE SUIT FOR PARTITION. THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED FOR
JUDGMENTCOMING ON FOR PRONOUNCEMENT OF THIS DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE KRISHNA S DIXIT AND HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CAV
JUDGMENT(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) Appellant/plaintiff has challenged the judgment of dismissal of the suit in O.S.No.134/2006 (Old O.S. No.73/1999) dated 8th October 2009 passed by the Civil Judge (Sr.Dn.) and ACJM, Karkala.
2. The parties to this appeal are referred to as per their rank before the trial Court for the purpose of convenience. 3
3. That plaintiff filed a suit against defendants seeking relief of partition of 'A' schedule immovable property by dividing the same into three shares by metes and bounds and also deliver one such share to him and also directing the partition of 'B' schedule properties and to pay the plaintiff one share thereof.
4. The records of this appeal reveal that, initially the suit was filed in O.S.No.73/1999 on the file of Civil Judge (Sr.Dn.), Mangaluru, Dakshina Kannada. In view of the establishment of Civil Judge (Sr.Dn.) Court at Karkala, the said suit came to be transferred to the Jurisdictional Court and renumbered as O.S.No.134/2006.
5. According to the plaintiff, the first defendant is his brother and 2nd defendant is his sister. 'A' schedule property was a self acquired property of his father by name late K.Narayana Shenoy by way of grant of occupancy rights by the Land Tribunal. Likewise, 'B' and 'C' schedule properties are self-acquired properties of his father. It is plaintiff and defendants who succeed to the said schedule properties jointly and equally. 4
6. It is stated that, plaintiff was residing in the 'A' schedule property till 03.12.1992. Because of his employment, he shifted his residence to Mangaluru. The 1st defendant used to reside with his father in 'A' Schedule property. Defendant No.2 is his sister who is already married and residing in her matrimonial home. After demise of K.Narayana Shenoy, 1st defendant started to deal with the schedule properties left behind by their father. As the plaintiff did not wish to continue his joint status with defendants. Defendants have not co-operated for the same. The 1st defendant illegally tried to dispossess the plaintiff from the schedule property.
7. It is alleged that, without the knowledge and consent of the plaintiff, the 1st defendant has carried out lot of changes to the hind portion and the upper floor of the building situated in 'A' schedule property. He is also contemplating to let out the 1st floor in the 'A' schedule property to third parties. He is also running a furniture shop in a portion of Door No.12-8 situated in a suit 5 schedule 'A' property. Therefore, plaintiff filed the present suit seeking partition.
8. Pursuant to the suit summons, both the defendants appeared before the trial Court. The 1st defendant resisted the suit of the plaintiff by filing the detailed written statement, whereas, the 2nd defendant has not filed any written statement. So far as the acquisition of the property by the father of the plaintiff and defendants from the Land Tribunal by way of occupancy rights, it is admitted. Status of the schedule properties as narrated in the plaint is admitted.
9. It is contended that, the 1st defendant has studied upto X Std. He started assisting his father in cycle repair business. His father used to repair and hire the cycles. Because of his old age, it was defendant No.1 who used to take care of the business of his father. This fact is known to the plaintiff. The plaintiff was well aware that, the father of the plaintiff and defendants Narayana Shenoy bequeathed the schedule properties by virtue of a WILL dated 4.1.1998 to all his children in sound disposing state 6 of mind. A copy of the Will was forwarded to the plaintiff as desired by the father of the plaintiff. Even plaintiff requested to send the said copy of the Will to him and accordingly, it was sent to him on 06.10.1998.
10. It is contended that, by virtue of the said Will, item No.1 was given to the plaintiff and item no.2 was given to the 1st defendant. The 3rd item was bequeathed to the 2nd defendant. It is contended that, defendant requested the plaintiff to agree for division as per the Will. He did not agree for the same. Along with the said Will, a sketch is also annexed showing blue colour in the sketch as a property allotted to the 1st defendant. It cannot be partitioned. The red coloured property measuring 25 cents is given to the plaintiff. Separate passage is also reserved to access the property allotted to the plaintiff. It is contended that, Plaintiff is not happy about the same. Therefore a false suit is filed by the plaintiff seeking partition without any reason. It is prayed to dismiss the suit. 7
11. In view of the rival pleadings of both the sides, the learned trial Court framed in all 8 issues. They read as under.
1. Whether the plaintiff proves that his father late K. Narayana Shenoy died intestate on 1.5.1998?.
2. Whether the plaintiff proves that suit 'B' schedule properties also belonged to late Narayana Shenoy?.
3. Whether the plaintiff and defendants have jointly and equally succeeded to the suit schedule properties upon the death of K. Narayana Shenoy as his only legal heirs?.
4. Whether the plaintiff is entitled for 1/3rd share in all the plaint schedule properties?.
5. Whether the 1st defendant proves that late K. Narayana Shenoy duly executed the Will dated 4.1.1998 in his favour as alleged?.
6. Whether the suit is not properly valued and the court fee paid is incorrect?.
7. Whether the plaintiff is entitled for a judgment and decree as prayed for?.
8. To what order or decree?.
12. Before the trial Court, to substantiate the case of the plaintiff, he himself entered the witness box as PW.1 and got marked Exs.P1 to P4 and closed plaintiff's evidence. To rebut the evidence of the plaintiff, defendant 8 No.1 himself entered the witness box as DW.1, so also examined two witnesses by name Jocy Pinto and Annappa Mallya as DWs.2 and 3 and got marked Exs.D1 to D40 and closed defendants evidence.
13. The learned trial Court, on hearing the arguments and on evaluation of the evidence placed on record by both the sides answered issue Nos.1 to 4, 6 and 7 in the negative and Issue No.5 in the affirmative, holding that, the Will so set up by the 1st defendant is proved in accordance with law dated 04.01.1998. Ultimately, dismissed the suit of the plaintiff.
14. This is how the plaintiff is before this Court challenging the dismissal of his suit by filing this appeal.
15. The records of this appeal reveal that, during the pendency of this appeal, an application was filed to refer the admitted and disputed signatures of testator Narayana Shenoy to the hand writing expert. Accordingly, a Co-ordinate Bench of this Court passed an order on 02.02.2018 referring the admitted and disputed signatures of the deceased Narayana Shenoy to the handwriting 9 expert. Therefore, this Court has received the expert opinion report.
16. Learned Sr.Counsel Sri. P.P. Hegde for the appellant with all force submits that, though the relationship between the plaintiff and defendants is admitted, but, the very existence of the Will by the deceased testator is disputed by the plaintiff. According to him, no such Will was executed by the deceased and the said Will so set up by the defendant is a concocted document just to deprive the plaintiff to get the schedule properties of his choice. According to his submission, as the Will is a concocted document, the said Will is not a valid Will. There are so many suspicious circumstances with regard to the execution of the said Will. Further, he submits that, by superimposing the signature of the testator, it was defendant no.1 who created the said Will and now he is setting up a title over the property in question. So far as possession of the schedule property by defendant no.1 is concerned, he admits. According to him, he is also in joint possession of the schedule properties. 10 Further he submits that, though there is a distribution of the share in the schedule property it is not properly distributed. The plaintiff is seriously disputing the said Will. As the Will is the outcome of fraud and fabrication, unless the said Will is duly proved in accordance with law, he submits that, the defendant no.1 cannot claim any right over the properties under the said Will.
17. The learned Sr.counsel Sri. P.P.Hegde submits that, the said signature admitted as well as disputed signatures were referred to the handwriting expert and the hand writing expert has given an opinion that the signatures were so found on the Will are not the signatures of deceased Testator. That it itself is sufficient to disprove the said Will. When the Will is not proved, then, the plaintiff is entitled for a general partition of the schedule properties by metes and bounds.
18. In support of his submission, the learned counsel for the Appellant/plaintiff relied upon the following decisions. 11 (i) H. Venkatachala Iyengar v. B.N. Thimmajamma and Others - AIR1959SC443(ii) Ramachandra Rambux v. Champabai and Others - AIR1965SC354(iii) Surendra Pal and Others v. Dr. (MRS.) Saraswathi Arora and Another - (1974) 2 SCC600(iv) Smt. Jaswant Kaur v. Smt. Amrit Kaur and Others - (1977) 1 SCC369(v) Rajkumari and Others v. Surender Pal Sharma - (2021) 14 SCC500(vi) Murari Lal V State of Madhya Pradesh - (1980) 1 SCC704(vii) Lakshman Prasad v. State of Bihar - 1981 (Supp) SCC22(viii) Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De Sequeira (Dead) Through LRs - (2012) 5 SCC37019. As against this submission, learned counsel for Respondent no.1 Sri. Ariga submits that, when the plaintiff is disputing the said Will, submits that, the primary duty of the Court to ascertain the language of the testator as to what were his intentions in the construction of the Will and even the Court has to sit on the "arm-chair" of the testator. In construing the said Will according to his submission, endeavour of the Court to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document itself read as a whole. When the Will is charged with the suspicion, the 12 rules enjoy a reasonable skepticism, not an adulate persistence in disbelieving the said Will.
20. According to his submission, there are no suspicious circumstances brought on record by the plaintiff to disprove the said Will. There cannot be any mathematical accuracy in proving the said Will. The test is the satisfaction of a prudent man.
21. He too relies upon the following decisions: (i) Boyes v. cook - 1880 (14) CH.D53(ii) Venkata Narasima Appa Row since deceased (Now represented by Meka Venkataramayya Appa Row and Another) v. Parthasarathy Appa Row and Another - (1913-14) 41 IA51(iii) Gnanambal Ammal v. T. Raju Ayyar and Others - (1950) SCC978(iv) H. Venkatachala Iyengar v. B.N. Thimmajamma and Others - AIR1959SC443(v) Meena Pradhan and Others v. Kamla Pradhan and Another - (2023) 9 SCC73422. We have given our anxious consideration to the arguments of both the sides and meticulously perused the records. 13
23. In the light of the rival contentions and upon perusal of materials on record, we are required to determine the following points: i) Whether the execution and attestation of Ex.D1 Will is proved as required under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act?. ii) Whether the learned trial Court was right in accepting the evidence of DWs.2 and 3 as credible to hold that the so called Ex.D1 Will is a genuine and last Will of the Testator Narayana Shenoy?. iii) Whether the plaintiff is entitled for share in the suit schedule property as claimed in the plaint?.
24. In this appeal, as the plaintiff has questioned the very validity of the Will which was accepted by the trial Court, before deciding Point No.3, it is just and proper to decide point nos. 1 and 2 together so as to avoid confusion.
25. With regard to the proof of Will, the law is very much settled i.e. the mode of proving the Will does not ordinarily differ from that of proving any other document except as the special requirement prescribed under Section 63 of the Indian Succession Act. Proof cannot be 14 mathematically precise and certain, and hence, the test should be one of satisfaction of a prudent mind in such matters.
26. Section 68 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 63 of the Indian Succession Act postulates the mode and manner in which proof and execution of a document required by law is to be attested. In unequivocal terms, Section 68 states that the execution of the Will must be proved at least by examining one attesting witness.
27. The Hon'ble Apex Court in various decisions has pointed out the essential facts on proof of which, the onus of the propounder is discharged. The earliest decision to be referred to in this regard is, H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR1959SC443which Hon'ble Apex Court has laid down the law as under:
"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 15 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 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.
28. However, there is one important feature which distinguishes Wills from other documents, unlike, other documents, the Will speaks from the death of the testator who had already departed the word cannot say whether it is his Will or not and this aspect naturally introduces and element of solemnity in the decision of the question as to the whether the document propounded is proved to be last Will and testament of the departed testator. Even so, in dealing with a proof of Wills, the Court will start on the same enquiry as in the case of the proof of documents. 16 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 disposing state of mind and his signature as required by law, Court should 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 the essential facts just indicated.
29. Again, in the decision in Gurdial Kaur v. Kartar Kaur, reported in (1998) 4 SCC384 the Hon'ble Apex Court, has held as follows:
"4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will". 17
30. Regarding the discharge of the burden, it is very much settled by the Hon'ble Apex Court that, the burden of proof that the Will has been validly executed and it is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature of effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exist any. In any case of proof of Will, a signature of the testator alone would not prove the execution there of, if his mind may appear to be very feeble and debilitated. However, if the defence of fraud, coercion or undue influence is raised, the burden would be on the caveator.
31. Subject to the above proof of a Will does not ordinarily differ from proving any other document. This principle is laid down in the judgment of the Apex Court in 18 Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others reported in (2006) 13 SCC433in para 32 of the same judgment it is held as under:
"32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable".
32. Thus, the burden of proof for due and valid execution of a Will is on the propounder. That means, the propounder must satisfy the genuineness of the Will and Court must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances. 19
33. It is now well settled that, requirement of proof of execution of a Will is same as in the case of other documents for example, gift or mortgage. Law requires that the proof of execution of a Will has to be attested at least by two attesting witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it has to be proved, the executant had signed and/or given his thumb impression in the presence of at least two attesting witnesses and attesting witnesses had put their signature in the presence of the executant.
34. Reiterating the principles of proof of Will and removal of suspicious circumstances, in Guro (Smt) v. Atma Singh reported in (1992) 2 SCC507 para 3 of the said judgment held as under:
"3. With regard to proof of a will the law is well settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by Section 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 signature of the testator as required by law is sufficient to discharge the onus. Where, however 20 there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator".
35. In the light of the above well settled position, rival contentions of the parties are to be examined. Before we proceed further, we would like to highlight few points which put us on guard to analyse the matter with care and circumspection.
36. In this case, the trial Court has believed the said Will and ultimately dismissed the suit of the plaintiff holding that the Will is proved in accordance with law. Being aggrieved by the same, the appellant-plaintiff has preferred this appeal before this Court.
37. Appellant by preferring this appeal has challenged the very execution of the Will by the testator. He filed an application before the appellate Court itself and 21 as per the orders dated 2.2.2018, the disputed and admitted signatures of the testator were referred to the handwriting expert i.e. FSL Bengaluru. The Court has received the test report on 10.5.2022 from the Director, State Forensic Science Laboratory, Madiwala, Bengaluru.
38. As per the opinion of the handwriting expert, he materially examined Ex.D1 i.e. Will dated 04.01.1998 containing four sheets. He also examined the sketch Ex.D2 containing the signatures in the enclosed portion and also signatures on the said Will as per Ex.D1(a) to D1(d) and Ex.D2(a). So also, he has materially examined Ex.D6 sale deed dated 3.10.1970 and a portion of the same is marked as the said document. He also examined Ex.D4 and D40 and signatures at D40(a) and D40(c). As per the opinion of the handwriting expert, "the person who wrote the signature marked as Ex.40(a) to 40(c) and Ex.D6 did not write the signatures marked as Ex.D1(a) to Ex.D1(d) and Ex.D2(a) and Ex.D4(a)". To that effect, he has submitted report with pictorial signatures taken by him at the time of conducting the scientific examination of the admitted and 22 disputed signatures of the testator i.e. father of plaintiff and defendants.
39. The serious allegations of concoction of the said document is made against defendant no.1 by the plaintiff. Evidently, the respondent no.1 has filed detailed objections to this report denying the very report of the scientific examiner i.e. handwriting expert.
40. With regard to the proof of execution of the attestation or with regard to proof of signature of the testator and execution of the Will, the best evidence is evidence of eye witnesses. The eye witnesses are DW.3 and 4 by name Jocy Pinto and Annappa Mallya. They were examined before the trial Court. As per the evidence of DW.2, he is a neighbour of deceased Narayan Shenoy. As per his evidence, deceased Narayana wrote a Will in the year 1998. This DW.2 was called by him to put his signature on the said Will. Another witness Annappa Mallya was present at that time. He identified Will as per Ex.D1. He identified his signature as per Ex.D1(a). He states that in his presence, Narayana Shenoy signed the 23 said Will. Likewise, DW.3 Annappa Mallya also states that he knows about the execution of the Will by Narayan Shenoy. He was called to sign the said Will as attesting witness as per his evidence. According to his evidence, on each page of the said Will, Narayan Shenoy has put his signature.
41. But, on reading the entire cross-examination of DW.2 and DW.3 deposed before the Court they have stated that, when and where the said Will was executed by the deceased. They deny the suggestions that, the said Will is concocted to benefit the defendant no.1. They have stated that, they have signed the Will in the presence of Testator and Testator signed in their presence.
42. It is contended by the counsel for the respondents that, Section 17 of the Indian Evidence Act is permissive and enabling provision and is in the nature of safeguard to mandatory provisions under Section 68 of the Evidence Act. Therefore, the defendant no.1 in this case has proved the due execution of the Will in the presence of DW.2 and 3. But, the handwriting expert is of the opinion 24 that, signature so found on Ex.D1 is not the signature of the testator Narayana Shenoy. So unless the signature of Narayan Shenoy on the said Will is proved in accordance with law, it cannot be stated that, the Will is duly proved in accordance with law. Much emphasis was laid upon the evidence of DW.1 to 3. No doubt, DW.1 has not participated in the execution of the Will.
43. DW.2 and 3 by name Jocy Pinto and Annappa Malya the attesting witnesses so examined by the defendant in their respective evidence stated that, in the year 1998, when Narayana Shenoy wrote the Will, they were very much present. Both identified the said Will marked at Ex.D1 and also the signatures of Narayana Shenoy as well as their signatures so marked at Ex.D1(a) to D1(e). It has come in the evidence of DW.2 that, he is not friend of Nithyananda Shenoy i.e. defendant no.1. His house is situated at a distance of 3 to 4 kms. from the house of DW.3. Though intensive long cross-examination is directed against this witness, but, nothing worth is elicited from his mouth. In the cross-examination he 25 states that, prior two to three days of the execution of the Will, said Narayana Shenoy put forth his intention to execute the Will and this DW.2 was asked to come to his house on Sunday i.e. on 4.1.1998. It is further stated by him that, when he went to the house of Narayana Shenoy, already DW.3 was present and the Will was prepared. It is further elicited that, at that time, said Narayana Shenoy was in good health. This DW.2 came to know that, the back portion of the house was given to the plaintiff (elder son of testator) and the front portion of the house was given to the defendant no.1. He does not know about the extent of the said property. Except the testator and these two witnesses, nobody was present. He denied all the suggestions directed to him.
44. Likewise, DW.3, too states that, Narayan Shenoy put his signature in his presence. Thereafter, himself and DW.2 put their signature and he identified his signature on the said Will as per Ex.D1(f) so also identified the signature of testator Narayana Shenoy and DW.2. He too states that, when the said Will was executed by 26 Testator was quite healthy. It is his evidence that, Testator was telling him that, he was suffering from blood pressure. Though the lengthy cross-examination is directed to him, but, he is consistent about the execution of the Will by the testator in his presence and in the presence of DW.2.
45. Plaintiff-appellant relies upon the expert opinion and submits that, as it is opined by the expert that, the signature so found on Ex.D1 is not the signature of testator, therefore, such a signature cannot be accepted. Thereby, he submits that, Ex.D1 is not a genuine document and it is a created document.
46. The counsel for the plaintiff-appellant mainly relied upon the opinion evidence i.e. the handwriting expert as stated above. By now, it is well settled that, the Court must be cautious while evaluating the expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that, it may not be safe to solely rely upon such evidence and the court may seek independent and reliable corroboration in the facts of 27 a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes: (i) Ram Chandra v. State of Uttar Pradesh - AIR1957SC381 (ii) Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR1964SC529 (iii) Magan Bihari Lal v. State of Punjab, AIR1977SC1091(iv) S. Gopal Reddy v. State of A.P., - (1996) 4 SCC59647. In the Constitution Bench judgment in Shashi Kumar Banerjee (supra), the Hon'ble Apex Court has observed that, the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will. Finding such evidence to be inconclusive. The Court instead, relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
48. On the other hand, in Murari Lal v. State of M.P., reported in (1980) 1 SCC704 the Hon'ble Apex 28 Court emphasized that, reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred above, the Court was of the opinion that, these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Hon'ble Apex Court also noted that Section 46 of the Indian Evidence Act, 1872 expressly makes opinion evidence open to challenge on facts.
49. Thus, on reading the aforesaid law laid down by the Hon'ble Apex Court in Murari Lal (supra) and Alamgir v. State (NCT, Delhi), reported in (2003) 1 SCC21strengthens the proposition that, it is the duty of the court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent 29 corroboration of such evidence as a general rule of precedence.
50. In the light of these principles, it is necessary to evaluate the evidence placed on record by the plaintiff and defendants with regard to the proof of the Will especially, the signature of testator on Ex.D1.
51. As mentioned earlier, Ex.D1 is the Will stated to have been executed by Narayana Shenoy. During the trial stage, plaintiff has not chosen to seek the expert opinion regarding the genuineness of the said signature. Only at appellate stage, he sought opinion with regard to the signature of his father. Evidently, as per the evidence of the DW.1, the so called propounder of the Will and the attesting witnesses DW.2 and 3, this defendant no.1 being propounder has not participated at the time of execution of the Will. Even it is not the case of the plaintiff also. His only assertion is that, signature of his father on the said Ex.D1 is forged in view of report of FSL. DWs 2 and 3 during the course of their evidence both in their examination-in-chief as well as in the cross-examination 30 identified the signatures of testator Narayana Shenoy on the said Will. It is their evidence that, in their presence, the testator Narayan Shenoy put his signature on the said Will. Thus, it is clear that the signatures of Narayan Shenoy are admitted by these DWs.2 and 3. Even the signature on Ex.D1 belongs to Narayan Shenoy is not denied by the plaintiff. It is his allegation that, by superimposing the said signature, it is fabricated.
52. Undoubtedly, the opinion of the handwriting expert is a relevant fact under Section 45 of the Indian Evidence Act. Under Sec.47 of the Evidence Act, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact.
53. As per explanation to Sec.47 of the Evidence Act, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person or 31 when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Thus, a reading of Section 47 of the Indian Evidence Act makes it very clear that, this provision is concerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. On reading explanation to Sec.47, it goes on to enumerate the circumstances in which a person may be said to have such acquaintance.
54. If this proposition of law is applied to the present facts of the case, DW.2 and 3 in their evidence, have identified this disputed signature of Narayan Shenoy (testator) on Ex.D1. They have clearly stated that, they were very much present when Ex.D1 was signed by the testator. Moreover, as mentioned in the earlier paras, when DW.2 and 3 identified the signature of testator, then, now the plaintiff cannot deny that the said signature is fabricated. That means, DW.2 and 3 were acquainted with the signature of testator and DW.3 is person who frequently visited the shop of testator and DW.2 was very 32 much present when the said Will was signed by the testator. They put their signature only after understanding the contents of the same. Even it has come in the evidence of DW.2 that, when he met the testator, he was expressing his intention to execute the Will. The said intention was executed in the form of writing Ex.D1 by the testator. That means, it is clear that, both these DW.2 and 3 were acquainted with the handwriting of the testator in terms of Sec.47 of the Evidence Act. This makes their opinion as to the disputed signature as a relevant fact under Section 47 of the Evidence Act.
55. In view of all these factual features, it would be apposite to observe that, the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed signature. This in turn, depends on the frequency with which the witness had occasion to notice and observe the signature, his own power of observation and how recent such observations were. Because, in evaluating the evidence of a handwriting expert on the question of genuineness of the signature 33 alleged to be that of the testator, the Court must keep in view the following consideration: (i) Firstly, very few people always sign in the same manner on all occasions; (ii) Secondly, the opinion of an expert as to the genuineness of the signature should be received with great caution especially in a case where there is positive evidence of persons who saw the testator sign the Will; (iii)Thirdly, all the tests evolved by experts in the matter of comparison of handwriting and signature are merely tentative in character; (iv) Lastly, opinion evidence is usually very weak evidence.
56. Even under the provisions of Section 73 of Indian Evidence Act, court is competent to compare the disputed signature with admitted signature. No doubt, Section 73 of Evidence Act, empowers the court to see for itself and compare the disputed signatures with admitted signature. Though as per the FSL report, we have seen the enlarged copies of disputed and admitted signatures, we do not venture to go in for such comparison as contemplated under Section 73 of the Evidence Act. The reason being, we have taken opinion of handwriting expert 34 as only one piece of evidence creating suspicion and we are not basing our conclusion solely on that basis.
57. These DW2 and 3 the attesting witnesses have stated about they witnessing signing of Will by the testator. Even the tenor of recitals in Ex.D1 shows that, he has not used any harsh words either against the plaintiff or defendant nos. 1 and 2. So far as immovable property is concerned, he divided the same into two divisions and allotted a portion to defendant no.1 in which, himself and defendant no.1 were in occupation. It has come in the evidence of DW.1 that, defendant no.1 took care of deceased-father during his lifetime. When deceased suffered heart attack and admitted in the hospital, this plaintiff visited the hospital only and it was defendant no.1 who took care of his father when testator was admitted in the hospital. A provision is made to the daughter in the said Will to give her cash which was deposited in the Bank by the testator. Already defendant no.2 had received the said amount. The testator had not at all expressed any ill Will or animosity against the plaintiff. He never used any 35 harsh words. In turn, it was defendant no.1 who wrote a letter to the plaintiff stating that, his father has misunderstood him and because of that, father is not in talking terms with him etc., Even defendant no.1 has requested the plaintiff to come and reside in the said house itself. It is not the case of the plaintiff that, he has replied to the said letter.
58. There is a consistent testimony of DWs.1 to 3 about the acquisition of the Will. DWs.2 and 3 being the attesting witnesses have spoken about their presence when the said Will was signed by the testator and each of the attesting witnesses signed the said Will in the presence of the testator. They identified the signature of the testator also.
59. Deceased testator was doing a business in cycle repairs and hire. He was having so many friends. Thereby, he must be well conversant with regard to the execution of the Will. Though the learned counsel for the appellant plaintiff relies upon the Handwriting Expert Report but, the evidence of DWs.2 and 3 do establish 36 about their presence when the Will was executed. In the present case, in view of the clear evidence that, the testator had signed the Will and both the attesting witnesses have testified that the said signature was made before them and they themselves having signed as attesting witnesses and further, the statement that, the time of execution the testator was of sound mind which is not even disputed by the plaintiff. These circumstances go against the very case set up by the plaintiff in his evidence with regard to the fabrication of Will by defendant No.1. Thus, the plaintiff having failed to show any such suspicion as to cast any doubt regarding execution of the documents, the argument so advanced on behalf of the plaintiff that, the said Will was not executed by the testator cannot be accepted.
60. The mode of proving Will does not differ from that of proving any other documents except as to its attestation in accordance with Section 63 of the Succession Act and that formality having been completed to prove the said document. The plaintiff having been 37 failed to show any suspicious circumstances, Ex.D1 is duly proved in accordance with law. There is no suggestion made to attesting witnesses that, as to why they would tell lie and against the plaintiff. Nothing has been suggested as to why DWs.2 and 3 will depose to support the defendant No.1. Inspite of long cross-examination directed DWs.2 and 3, these two attesting witnesses stood by the said statement and nothing had been brought which would belie their testimony.
61. The law is that, before a witness is disbelieved on a fact, it must be based on clear proved evidence that, he had deposed a fact which is contrary to either admitted fact or proved fact which is in conflict with the testimony given by him. Mere casting aspersions on the possibility of the fact is not sufficient to disbelieve his testimony specially where deposition is made of a fact which is of a period more than 10 to 15 years back. The witnesses have clearly stated that, it was Narayana Shenoy, who called them at his residence and accordingly, they reached there and they have been shown with the Will Ex.D1 of 38 which they cursorily looked into and passed back to the testator who signed before them which was followed by his own signature and thereafter, the signatures of DWs.2 and 3. As stated supra, inspite of lengthy cross-examination, no discrepancy has been pointed out as to cast any doubt on the veracity of state of these DWs.2 and 3.
62. Both these aforesaid two attesting witnesses have deposed the fact in a natural way and there has been no contradiction even after long cross-examination and there is nothing in the testimony as to disbelieve their version regarding execution of the alleged Will.
63. Argument was advanced on behalf of the plaintiff that, the evidence of DWs.2 and 3 cannot be accepted. Firstly, the argument is unsustainable. Admittedly, both the witnesses were well acquainted with the deceased and long known. They have spoken to that effect. Attester called them to be attesting witnesses to his Will. Therefore, they cannot be termed as even chance witnesses. Even law says that, merely the attesting witnesses are chance witnesses is also no ground to 39 disbelieve their evidence in view of the judgment in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, reported in AIR1964SC529 para 22 of the said judgment held as under:
" ……. it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before, acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence".
64. Similarly, in Fakhruddin v. State of Madhya Pradesh, reported in AIR1967SC1326 it is held as under:
"…This Court had an occasion to consider the evidentiary value of expert opinion in handwriting and it uttered a note of caution pointing out that it would be risky found a conviction solely on the evidence of handwriting expert before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial".
65. Though the hand writing examiner has given his report regarding comparing of admitted and disputed signatures, according to him, the variations found between the admitted signatures are natural one because of age of the testator this possibility cannot be ruled out. To say so, 40 that scientific examiner is not testified before the Court. It is quite natural that, the writer has certain variations in his writing and even in signatures. The defendant had challenged the said report of the scientific examiner.
66. It is also very significant that, when there is forgery of the signature of person, the natural instinct and tendency found that, the forger always make his best effort to closely imitate both its shapes and formation of letters and words from the admitted signatures of the person whose signature is sought to be forged. The opinion of the hand writing expert is that, the person who signed the disputed signature is not the person who signed admitted signature. But DWs.2 and 3 have stated about the signing of a Will by the testator.
67. Coming to the construction of the Will, the testator's desire so far as legally possible with his prejudices and passions, if any, should be taken out of account of. The testator has not eliminated any of his syndrome being the beneficiaries under the Will. He has not shown any prejudice against any of his siblings though 41 he was at liberty to show his prejudice as he desired. He has equally divided schedule immovable property and also has bequeathed money in favour of his daughter. Therefore, it is unsafe to cast doubt on the execution of the document only on the account of so called signature is fabricated. In view of the evidence of DWs.2 and 3, it cannot be stated that, the signature on the Will of the testator is fabricated. It also can be stated that, testator being a prudent man while disposing of his property disposed the same with prudent conscience having love towards plaintiff and defendants. As plaintiff is well off therefore, he was allotted half share in the property where there is no contradiction. Defendant No.1 being the 2nd son depending upon the business carried on by the testator, therefore, as a prudent man, the testator might have thought of bequeathing constructed portion to defendant No.1. By that, the testator has not taken away the right of the property earned by him as the testator has right to give the property to one the whom he likes. It is thus, very unsafe to disbelieve or draw inference of suspicion only on the basis of the disposable of the 42 property or about the suspicion raised by the appellant with regard to the said Will. A testator is entitled to express his personal whims, even though erroneous, even for divesting from a property of a legitimate person may be on account of groundless object.
68. In order to draw an inference regarding the execution of the Will, the Court must always place itself in the position of the testator and after examining the various states of things in which the testator was placed and reference on facts should be drawn. On Law of Wills by Mantha Ramamurthi, 2nd Edition page 64, the learned author has stated about the duty of the court with regard to the Will. "The first duty of the Court is to take note of the setting in which the Will was made by the testator. This is also known as the "armchair" rule. In other words, so far as permitted by evidence, the Court should place itself in the testator's arm- chair at that time he executed the Will and find out how the testator regarded the affairs and what feeling he had in respect of the persons he was benefiting or disinheriting: The court has then to ascertain if the testator was in a position to understand the nature of the act and its effects, the extent of the property which he was disposing of, and whether he was able to apprehend and appreciate the claims to which he had to give effect. 43 The Court should be astute in ascertaining if any disorder of the mind had poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties. If the Court is satisfied that the Will is genuine, it is bound to give effect to it even if some of its provisions are extraordinary, unnatural, unreasonable or iniquitous. Insofar as the Will is a legal declaration of a man's intention as to how he wants to disposition to be made of his property after his death his declared intention must be given effect to, unless forbidden by law.
69. In view of all these factual features brought on record and the fragile submission of the plaintiff, it can very well be concluded that, the Will relied upon by defendant No.1 is duly proved in accordance with law. Now, it has to be given effect to. Therefore, there is no substance in the submission of the counsel for the appellant that Will is the outcome of fabrication of signature. Hence, it is held that, the Will is duly proved.
70. The learned trial Court on evaluating the evidence both oral and documentary has rightly answered the issues, so framed and dismissed the suit. The conclusion arrived at by the trial Court is based on the evidence placed on record. We do not find any factual or legal error in the findings of the trial Court. 44
71. In view of proving of the Will by the defendant- respondent, the appeal fails and is liable to be dismissed.
72. Accordingly, the aforesaid points are answered against the appellant and in favour of the respondents. Resultantly, we pass the following: Order (i) Appeal is dismissed with no order as to costs. (ii) Impugned judgment and decree in O.S No.134/2006 (Old O.S. No.73/1999), dated 08.10.2009 passed by Civil Judge, (Senior Division) and ACJM, Karkala is hereby confirmed. (iii) Send back the trial Court records along with a copy of this judgment forthwith. Sd/- (KRISHNA S DIXIT) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk/-