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Karnataka High Court · body

2004 DIGILAW 26 (KAR)

KENCHATHAYAMMA v. NIL

2004-01-09

H.BILLAPPA

body2004
H. BILLAPPA, J. ( 1 ) THE appellants herein being aggrieved by the order dated 12-9-2002 passed by the Principal District Judge at Chitradurga in P and S. C. No. 1 of 2001 have preferred this appeal. ( 2 ) BRIEFLY stated the facts are as follows : the testatrix Gowramma was working as an Attender (Ayah) in the government Hospital at Guddada Rangavalli Village. Her husband narasimhappa died on 15-5-1984, her daughter Laxmi died on 24-10-1996 and her son Thippeswamy died on 4-10-1996. The appellants herein are the children of Gowramma's sister Lakshmamma. After the death of her husband and children, Gowramma was staying with the appellants herein and they were looking after her. Gowramma executed the registered Will dated 14-7-1999 bequeathing her properties in favour of the appellants herein and died on 16-7-1999 while in service. ( 3 ) THE appellants filed petition in P and S. C. No. 1 of 2001 for grant of probate of the registered Will executed by Gowramma. ( 4 ) THOUGH citation was issued nobody has entered appearance to contest the petition. ( 5 ) THE appellants herein in support of their case have examined three witnesses P. Ws. 1 to 3 and got marked Exhibits P. 1 to P. 7. ( 6 ) ON appreciation of evidence, the Trial Court by its order dated 12-9-2002 has dismissed the petition holding that the petitioners have not proved due execution of the Will Exhibit P. 1 and hence they are not entitled to the relief claimed. ( 7 ) BEING aggrieved by the said order, the appellants herein have preferred this appeal. ( 8 ) THE learned Counsels for the appellants submitted that Exhibit P. 1 is a registered Will and nobody has challenged the validity or genuineness of the said Will and that deceased Gowramma has bequeathed the properties in favour of the appellants herein who are the children of her sister and there is nothing unnatural in it. Taking me through the evidence of P Ws. 2 and 3 who are the attesting witnesses, he submitted that they have deposed regarding the execution of the Will and their evidence clearly establishes the due execution of the Will exhibit P. 1. Taking me through the evidence of P Ws. 2 and 3 who are the attesting witnesses, he submitted that they have deposed regarding the execution of the Will and their evidence clearly establishes the due execution of the Will exhibit P. 1. In support of his submission he placed reliance on the decisions in the cases of Seth Beni Chand (dead) by L. Rs v Smt. Kamla kunwar and Others and Dharam Singh v Aso and Another. He further submitted that the Trial Court has failed to appreciate the evidence on record in proper perspective and the order passed by the Trial Court is contrary to the evidence on record and hence it is not sustainable in law and liable to be set aside. Further, he submitted that the appellants have proved due execution of the Will Exhibit P. 1 and they are entitled for grant of probate. ( 9 ) I find considerable force in the submission of the learned Counsel for the appellant. ( 10 ) BEFORE discussing the evidence, it is relevant to mention the background in which the Will Exhibit P. 1 has been executed. Testatrix gowramma was working as an Attender (Ayah) in the Government hospital at Guddada Rangavalli Village, Hiriyur Taluk. Her husband died on 15-5- 1984. Her daughter Laxmi died on 24-10-1996 and her son thippeswamy died on 5-10-1996. The appellants herein are the children of her sister Lakshmamma. After the death of her husband and children, she was staying with the appellants and they were looking after her. Except the appellants herein there are no other close relatives. It is in the said circumstances, testatrix Gowramma has executed the registered Will dated 14-7-1999 bequeathing her properties in favour of the appellants herein who are the children of her sister and died on 16-7-1999. ( 11 ) THE reasons given by the Trial Court to dismiss the petition are that there is no specific averment in the petition to suggest that gowramma was in good health and that the witnesses P. Ws. ( 11 ) THE reasons given by the Trial Court to dismiss the petition are that there is no specific averment in the petition to suggest that gowramma was in good health and that the witnesses P. Ws. 1 to 3 have not stated about the mental or physical condition of Gowramma when she executed the Will and that some scribbling suggesting to be the signature of Gowramma at the end of page No. 1 and type written portion of page No. 2 is struck off and below it thumb impression alleged to be of Gowramma is affixed and that P. Ws. 2 and 3 the attesting witnesses have not stated as to who had signed or scribbled the signature of Gowramma, who struck them off and why Gowramma subsequently opted to put her thumb impression on Exhibit P. 1 and that it raises a reasonable doubt in the mind of the Court regarding the genuineness of the Will Exhibit P. 1 and that P. Ws. 1 to 3 have not stated as to who got the Will written or prepared or on whose instructions Exhibit P. 1 was written or prepared and that the petitioners have not proved that Gowramma was in a sound disposing state of mind and that due attestation and execution of Exhibit P. 1 has not been proved and hence petitioners are not entitled for grant of probate. ( 12 ) SECTION 68 of the Indian Evidence Act, 1872 provides for proof of execution of document required by law to be attested. It reads as follows:"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". ( 13 ) THE appellants herein have examined three witnesses P. Ws. ( 13 ) THE appellants herein have examined three witnesses P. Ws. 1 to 3 and got marked Exhibits P. 1 to P. 7. P. Ws. 2 and 3 are attesting witnesses. Appellant 2 herein who has been examined as P. W. 1 has stated that the appellant 1 herein is his sister and deceased Gowramma was his aunt and that Gowramma was residing with them after the death of her husband and children and that he was looking after her and that there are no other legal heirs or close relatives to her and that she has executed the Will Exhibit P. 1 bequeathing the properties in their favour. P. W. 2 who is an attesting witness, has stated that Gowramma was residing with the appellants herein and that she executed the Will exhibit P. 1 in favour of the appellants herein and that he has signed the said Will Exhibit P. 1 and that his signatures are at Exhibits P. l (a) and P. l (b ). He has also stated that the appellants herein are the children of Gowramma's sister. P. W. 3 who is also an attesting witness has stated that Gowramma executed the Will Exhibit P. 1 and that he was present when the Will was executed and that he has signed the Will and his signatures are at Exhibits P. l (c) and P. l (d) and that exhibits P. l (e) and P. l (f) are thumb marks of Gowramma and that he has written the shara identifying the thumb mark of Gowramma in exhibit P. 1 Will. He has also stated that appellants were looking after gowramma and that she was staying with them and that Gowramma has no other legal heirs. In Exhibit P. 1, a shara has been written that gowramma was unable to sign as her hand was shaking and therefore she has put her thumb mark. It is also mentioned in Exhibit P. 1 that the draft was prepared by one D. H. Gundu Rao and the Will Exhibit P. 1 was typed by one K. Prasad. Exhibit P. 2 is the death certificate of gowramma, which shows that she died on 16-7-1999. Exhibit P. 3 is the death certificate of Narasimhappa, the husband of Gowramma and it shows that he died on 15-5-1984. Exhibit P. 2 is the death certificate of gowramma, which shows that she died on 16-7-1999. Exhibit P. 3 is the death certificate of Narasimhappa, the husband of Gowramma and it shows that he died on 15-5-1984. Exhibits P. 4 and P, 5 are the death certificates of Gowramma's children Lakshmi and Thippeswamy. Exhibit P. 4 shows that Lakshmi died on 24-10-1996. Exhibit P. 5 shows that Thippeswamy died on 4-10-1996. It is clear from the evidence on record that testatrix Gowramma was working as an Attender (Ayah) and that after the death of her husband and her children she was staying with the appellants herein who are the children of her sister and that they were looking after her during her lifetime and that she has executed the registered Will Exhibit P. 1 bequeathing her properties to them. There is nothing unnatural in it. The evidence on record clearly establishes due execution of the Will Exhibit P. 1 by Gowramma. In spite of this clinching evidence the Trial Court has dismissed the petition holding that due execution of the Will Exhibit P. 1 has not been proved by the appellants herein. The Apex Court, in the case of Seth beni Chand, supra, has held that ordinarily, the burden of proving the due execution of the Will is discharged, if the propounder leads evidence to show that the Will bears the signature or mark of the testator and that the Will is duly attested and for proving attestation the best evidence would be of an attesting witness and that where the circumstances surrounding the execution of the Will are shrouded in suspicion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence. In this case the Will is not shrouded with suspicious circumstances. There is no challenge to the execution of the Will Exhibit P. 1. It is a registered Will. Its validity or genuineness is not in question. The appellants herein have examined both the attesting witnesses to prove the due execution of the Will: p. Ws. 2 and 3 who are attesting witnesses have deposed regarding the execution of the Will Exhibit P. 1 by Gowramma P. W. 3 has identified the thumb marks of Gowramma. Its validity or genuineness is not in question. The appellants herein have examined both the attesting witnesses to prove the due execution of the Will: p. Ws. 2 and 3 who are attesting witnesses have deposed regarding the execution of the Will Exhibit P. 1 by Gowramma P. W. 3 has identified the thumb marks of Gowramma. at Exhibits P. l (e) and P. l (f) and has stated that he has written the shara attesting the thumb marks of gowramma at Exhibits P. l (e) and l (f) in Exhibit P. 1 Will. Their evidence remains unchallenged. A shara has also been written in exhibit P. 1 that Gowramma was unable to sign as her hand was shaking and therefore she has put her thumb marks. It is therefore clear that the petitioners have proved the due execution of the Will Exhibit P. 1 in accordance with law and they are entitled for grant of probate. The trial Court has failed to appreciate the evidence on record in proper perspective and the reasons given by it to dismiss the petition are improper. The Trial Court was not justified in dismissing the petition. In the circumstances stated above the order passed by the Trial Court is not sustainable in law and it is liable to be set aside. ( 14 ) IN the result therefore the appeal is allowed the order passed by the Principal District Judge at Chitradurga in P and S. C. No. 1 of 2001, dated 12-9-2002 is set aside. The petition filed by the appellants herein is allowed granting probate of the registered Will Exhibit P. 1 dated 14-7-1999 executed by Gowramma in respect of the petition schedule properties. In the circumstances of the case, no order as to costs. --- *** --- .