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Karnataka High Court
Judges : S.R.BANNURMATH,H.N.NAGAMOHAN DAS
S.B.ITTIGI - Appellant
Versus
S.V.SULOCHANA - Respondent
M. F. A. 3884 Of 2001
Decided On : 12/08/2006
Advocates Appeared :
RAMESH P.KULKARNI, SHEKAR SHETTY, V.B.SHIVA KUMAR
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Indian Succession Act, 1925 Section 63 - Will - Execution of - Proof. Dilatory Settled Principles: It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party [AIR 1990 SC 396].
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Indian Succession Act, 1925 Section 63 - Suspicious circumstances - Testator s signature not found on first page of Will - Date of purchase of stamp paper for scribing Will differed from ocular evidence and that found on stamp paper itself - Details regarding property which is subject matter of Will not found in the document alleged to be Will - Scribe and attestor - Not examined - Held, thus there are suspicious circumstances in the matter of execution of Will in question and that the same is not properly cleared by producing acceptable evidence. [S.R. Bannurmath and H.N. Nagamohan Das, JJ.]: In the normal course the signature of testator will be on all the pages. But, in the instant case, the signature of the testator is not found on the first page and it is on the second page only. Secondly, P.W.2 in his evidence deposes that on 14.04.1983 the testator purchased the stamp paper on the same day. But on the stamp paper it is stated that the same is sold on 01.03.1983. Thirdly, in the will A schedule properties are bequeathed in favour of testator s wife Smt. Basannavva and B schedule properties are bequeathed in favour of plaintiff. The details of B schedule properties like property number, its size, its address, bank account numbers, the name of the bank, its location are all furnished. On the other hand in A schedule properties the details of properties bequeathed in favour of Smt. Basannavva are not forth coming. Fourthly P.W.1 in her evidence admitted that the testator and his wife Smt. Basannavva were in cordial terms and there was no ill-will between them. If so, in the will valuable properties situated at Bangalore are bequeathed in favour of plaintiff who is only a close intimate and encumbered properties at Bagalkot are bequeathed in favour of the wife of testator. These suspicious circumstances in the matter of execution of the will in question are not properly explained by the plaintiff. Thus there are suspicious circumstances in the matter of execution of the will in question and that the same is not properly cleared by the plaintiff by producing acceptable evidence.
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Indian Succession Act, 1925 Section 63 - Suspicious circumstances - Burden of proof - It is for propounder to remove legitimate suspicion for accepting a document as a last Will of a testator. Dilatory Settled Principles: The propounder of the shall completely remove the legitimate suspicion before the document is accepted as the last will of testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, the Courts would be reluctant to treat the document as the last will of the testator [AIR 1959 SC 443].
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Indian Evidence Act, 1872 - Section 73 - Comparison of signatures - Powers of Court - One signature admitted and another disputed - Parties not taking steps to secure opinion of handwriting expert - Under such circumstances, Court has power to compare disputed signature with undisputed signature. [S.R. Bannurmath and H.N. Nagamohan Das, JJ.]: A reading of Section 73 of the Evidence Act and the decisions referred to above makes it clear that the Court has the power to compare the disputed signature with the admitted signature. When the Court entertains a slightest doubt with regard to the signatures then the Court shall hesitate to compare the signature particularly in criminal matters. In the instant case, there is disputed signature of testator in the Will. There are undisputed signatures of testator. Both the plaintiff and the defendants have not taken steps to secure the opinion of a handwriting expert. Under those circumstances the Court has the power to compare the disputed signature with the undisputed signature under Section 73 of the Act.
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Disputed Documents - Signature - Comparison of - Powers of Courts.
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Wills - Suspecious circumstances - Burden lies on propounder to prove otherwise.
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
Wills - Execution of - Proof.
Cases Referred: AIR 1979 SC 14; (1997) 7 SCC 100; (1996) 2 SCC 704; AIR 1959 SC 443; AIR 1965 SC 354; AIR 1990 SC 1742; AIR 1990 SC 396.
( 1 ) THIS appeal arises out of the judgment and decree dated 27-1-2001 in O. S. No. 6752/1993 passed by VI Additional City Civil judge, Bangalore City, declaring that the first respondent is entitled for grant of letter of administration of will dated 14-4-1983.
( 2 ) FOR convenience, the parties are referred as per their ranking before the Trial Court. The facts in brief are as under:
( 3 ) ONE Sri Parappa Kalligud, an Ex-M. L. A. of Bagalkot, is the husband of deceased defendant Smt. Basannavva. Plaintiff contends, that she is a close and intimate companion and well-wisher of Sri Parappa Kalligud. Plaintiff further contends, that whenever Sri parappa Kalligud comes to Bangalore he used to camp in the house of the plaintiff. Sri Parappa Kalligud had both movable and immovable properties at Bagalkot and Bangalore. Plaintiff contends, that on 14-4-1983 Sri Parappa Kalligud (referred to as testator) executed an unregistered will bequeathing plaint A schedule properties in favour of his wife -The defendant and plaint B schedule properties in favour of plaintiff. The testator died on 3-4-1985 and he had no issues. After the demise of testator the plaintiff being legatee under the will filed a petition under Section 276 of the Indian Succession Act for grant of letters of administration in respect of plaint B schedule properties.
( 4 ) THE defendant denied the execution of the will dated 14-4-1983 by testator. She further contends, that the will in question is not genuine testament and that the same is a spurious document. The will is an outrageous of fraud and that the same is not consciously and intelligently executed by the testator.
( 5 ) ON the basis of the pleadings, the Trial Court framed the following issues for its consideration. They are: i. Whether the plaintiff-Propoun der proves the due execution of the alleged will dated 14-4-1983 by late Sri Parappa Kalligud? ii. What order or relief ?
( 6 ) THE plaintiff examined herself as P. W. 1 and one witness as p. W. 2 and got marked Ex. P. 1 to Ex. P. 53. During the pendency of suit the defendant Smt. Basannawa died and her legal representatives are brought on record. The lgal representatives of defendant examined two witnesses as D. W. 1 and D. W. 2 and got marked Ex. D. 1 to Ex. D. 9. The Trial Court on appreciation of pleadings, oral and documentary evidence passed the impugned judgment and decree declaring that the plaintiff is entitled for grant of letter of administration of will dated 14-4-1983 in respect of plaint B schedule property. Hence, this Regular First Appeal, by the defendants.
( 7 ) SRI S. Shekar Shetty, Learned Counsel for the defendants contend, that the testator acquired the house property at Bangalore from Bangalore Development Authority under a lease-cum-sale agreement and as such, he was not the absolute owner of it and he could not have bequeathed the same under the will dated 14-4-1983. He further contends, that the will, in question has come into existence in suspicious circumstances and execution of the same is not proved. He contends, that the Trial Court committed an error in holding that the will is executed by the testator on the ground that the defendant has not denied the signature on the will. The Trial Court committed an error in not taking into consideration the entire pleadings and the evidence on record. The Trial Court committed an error in comparing the disputed signature of the testator with that of other signatures and holding that they are exactly more or less similar. The Trial Court committed an error in not noticing the suspicious circumstances under which the will in question came: into existence. The Trial Court committed an error in decreeing the suit on surmises and conjunctures. The reasoning of the Trial Court is not supported by evidence on record. Reliance is placed on the following decisions.
( 8 ) SRI S. Shiva Kumar, Learned Counsel for plaintiff justifies the impugned judgment and decree of
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