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2011 (7) Supreme 509
SUPREME COURT OF INDIA
G.S. Singhvi and Asok Kumar Ganguly, JJ.
Dayanandi — Appellant
versus
Rukma D. Suvarna and others — Respondents
Civil Appeal No. 7548 of 2002
Decided on : 31-10-2011
(b) Indian Successions Act, 1925 ¯ Sections 63 and 71 ¯ Any alteration made in an unprivileged Will after its execution has no effect unless such alteration has been executed in the same manner in which the Will is executed ¯ Such alterations shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alterations or at the foot or end or opposite to a memorandum referring to such alterations and written at the end or some part of the Will ¯ The corrections/alterations made in Will (Ext P1) cannot be said to have been duly attested by the testator as per the requirement of Section 71 of the Act ¯ Respondent No.1 is entitled to share in the property specified in Schedule ‘B’ appended to the plaint. (Paras 24, 25 and 28)
(c) Will ¯Suspicious Circumstances ¯ Evidence of the doctors that the executant was suffering from stomach cancer at the time of the execution of the second Will (D1) executed on 17.8.1987 and was taken by three persons to the car and when he was brought back he was not eating food ¯ The executant died fourteen days after the execution of the second Will (Ext. D1) ¯ There was no necessity for execution of second Will if earlier by first Will (Ext P1) the executant had disinherited the respondent no. 1 from his property ¯ Held the second Will Ext. D1 was not voluntary act of the executant. (Paras 17, 18 and 19)
Facts of the Case
(1) The suit property was owned by SG, father of respondent No.1, appellant and respondent Nos. 2 to 6. About 3 months and 10 days before his death, SG executed Will dated 25.5.1987. He bequeathed the property specified in item No.1 of the Schedule attached to the Will to one of his four daughters, namely, Kalyani (respondent No.3) and the property specified in item No.2 jointly to the other daughters, namely, Dayanandi (appellant), Rukma (respondent No.1) and Deena (respondent No.2).
(2) After one year of the demise of SG, respondent No.1 filed suit for partition and separate possession of her share in plaint Schedule ‘B’ property. She pleaded that her father had executed Will dated 25.5.1987 and bequeathed plaint Schedule ‘A’ property to respondent No.3 Kalyani and plaint Schedule ‘B’ property to other daughters but by taking advantage of the acute illness of the father, the appellant and respondent No.2 manipulated the execution of another Will depriving her of share in the property.
(3) In the written statement jointly filed by them, appellant and respondent No.2 did not deny the execution of Will dated 25.5.1987 by SG but they questioned the genuineness and validity of the Will relied upon by respondent No.1 and pleaded that after executing the Will, the deceased had made alterations and thereby disinherited respondent No.1. They further pleaded that SG executed another Will 25.8.1987, in which respondent No.1 was not given any share because she did not attend funeral of the mother and even when the testator visited Bombay in May, 1987, she did not come to meet him. According to the appellant and respondent No.2, at the time of execution of the second Will, SG was in a sound state of mind and he consciously denied any share in the property to respondent No.1. They claimed that respondent No.1 has filed suit for partition and possession of her alleged share in the suit property by taking advantage of the testator’s subsequent illness and his inability to speak or move about.
Findings
(1) The corrections/alterations made in Will (Ext P1) cannot be said to have been duly attested by the testator as per the requirement of Section 71 of the Act. Respondent No.1 is entitled to share in the property specified in Schedule ‘B’ appended to the plaint.
(2) Execution of second Will (Ext D1) found suspicious. The second Will Ext. D1 was not voluntary act of the executant.
JUDGMENT
G.S. Singhvi, J.
1. This appeal is directed against the judgment of the learned Single Judge of the Karnataka High Court whereby he allowed the appeal filed by respondent No.1, reversed the judgment and decree passed by Ist Additional Civil Judge, Mangalore (hereinafter referred to as, ‘the trial Court’) and decreed the suit filed by her for partition and separate possession of her share in the suit property.
2. The suit property was owned by Singa Gujaran, father of respondent No.1, appellant and respondent Nos. 2 to 6. About 3 months and 10 days before his death, Singa Gujaran executed Will dated 25.5.1987. He bequeathed the property specified in item No.1 of the Schedule attached to the Will to one of his four daughters, namely, Kalyani (respondent No.3) and the property specified in item No.2 jointly to the other daughters, namely, Dayanandi (appellant), Rukma (respondent No.1) and Deena (respondent No.2).
3. After one year of the demise of Singa Gujaran, respondent No.1 filed suit for partition and separate possession of her share in plaint Schedule ‘B’ property. She pleaded that her father had executed Will dated 25.5.1987 and bequeathed plaint Schedule ‘A’ property to respondent No.3 Kalyani and plaint Schedule ‘B’ property to other daughters but by taking advantage of the acute illness of the father, the appellant and respondent No.2 manipulated the execution of another Will depriving her of share in the property.
4. In the written statement jointly filed by them, appellant and respondent No.2 did not deny the execution of Will dated 25.5.1987 by Singa Gujaran but they questioned the genuineness and validity of the Will relied upon by respondent No.1 and pleaded that after executing the Will, the deceased had made alterations and thereby disinherited respondent No.1. They further pleaded that Singa Gujaran executed another Will dated 25.8.1987, in which respondent No.1 was not given any share because she did not attend funeral of the mother and even when the testator visited Bombay in May, 1987, she did not come to meet him. According to the appellant and respondent No.2, at the time of execution of the second Will Singa Gujaran was in a sound state of mind and he consciously denied any share in the property to respondent No.1. They claimed that respondent No.1 has filed suit for partition and possession of her alleged share in the suit property by taking advantage of the testator’s subsequent illness and his inability to speak or move about.
5. On the pleadings of the parties, the trial Court framed the following issues:
“1. Whether the suit is bad for non-joinder of necessary parties? (deleted)
2. Whether the plaintiff proves that Late Singa Gujaran executed a Will dated 25.8.1987 and whether it was the last and effective Will of the Late Singa Gujaran?
3. Whether defendants No. 1 and 2 prove that their father Late Singa Gujaran executed the Will dated 25.8.1987 and whether it is the last and effective Will of Singa Gujaran?
4. Whether defendants No.1 and 2 prove the Panchayat alleged in para 9 of the written statement and whether the plaintiff accepted the jewellery? (deleted)
5. Whether the defendants 1 and 2 also prove that rents are being collected by Amarnath and spending for maintenance of property, payment of tax and to look after Ravindra who is congenitally mentally retarded and is dumb?
6. Whether the plaintiff is entitled to claim a share in the rental income of buildings situated in plaint “B” scheduled property?
7. Whether the plaintiff is entitled to partition and separate possession of 1/3rd share in plaint ‘B’ scheduled properties as claimed?
8. To what reliefs are the parties entitled.”
6. In support of her case, respondent No.1 examined herself and 5 other witnesses including PW-5 Dr. J. Subba Rao and produced 11 documents which were marked as Exhibits P.1 to P.11. She also got produced original Will dated 25.5.1987 (Exhibit P.1) from the appellant. The appellant examined herself as DW-1 and produ
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