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2015 DIGILAW 558 (KAR)

N. Sriram v. Ananthalakshmi Sathyavathi

2015-06-02

B.V.NAGARATHNA

body2015
JUDGMENT : B.V. Nagarathna, J. 1. This Regular Second Appeal is filed by defendant Nos. 2 to 4 in O.S. No. 222/96, assailing judgment and decree passed in R.A. No. 254/2002 by the Addl. Sessions Judge and Presiding Officer of Fast Track Court-I, Davanagere dated 13/09/2007. By that judgment and decree, the appeal filed by the respondent - plaintiff was allowed and the suit filed by her was decreed by setting aside the judgment and decree passed in O.S. 222/96 on 21/11/2002. For the sake of convenience, parties shall be referred to in terms of their status before the trial Court. 2. Respondent-plaintiff filed the suit seeking relief of partition and separate possession of the suit scheduled property consisting of land bearing Sy. No. 41/2, measuring 7 Acres 35 Guntas inclusive of 10 Guntas of kharab situated at Obajjihalli village, Davanagere Taluk and District. 3. The case of the plaintiff is that she is the younger sister of defendant No. 1. Their father was Nooni Satyanarayana. That the suit scheduled property was owned by one Kotramma and apart from the suit scheduled property, the total extent of Sy. No. 41, measured 15 Acres. That the said Kotramma sold 7 Acres 35 Guntas of land including 10 Guntas of kharab land in favour of the father of the plaintiff and defendant No. 1 - Nooni Satyanarayana in the year 1982 and the remaining 7 Acres and odd was purchased by the plaintiff. Thereafter, Sy. No. 41 was divided into Sy. No. 41/1, which was in the name of the plaintiff and Sy. No. 41/2 was in the name of the father of the plaintiff and defendant No. 1. According to plaintiff, the suit scheduled property was the self acquired property of her father, who died in the year 1995 leaving behind plaintiff and defendant No. 1 as the legal heirs. Therefore, she has succeeded to the estate of her father along with defendant No. 1. She demanded her half share in the suit scheduled property in the last week of January 1996 but the defendant postponed the same, which ultimately let her to file the suit. 4. During the pendency of the suit, defendant No. 1 died leaving behind defendant Nos. 2 to 4 as his legal heirs. In response to the suit summons, defendant No. 1 and thereafter defendant No. 2 filed their written statements. 5. 4. During the pendency of the suit, defendant No. 1 died leaving behind defendant Nos. 2 to 4 as his legal heirs. In response to the suit summons, defendant No. 1 and thereafter defendant No. 2 filed their written statements. 5. In the written statement filed by defendant No. 1, relationship between the parties has been admitted. It has also been admitted that Sy. No. 41 originally belonged to Smt. Kotramma and that it measured 15 Acres and odd and two parcels of the said land were purchased in the name of the father of the plaintiff and defendant No. 1 as well as in the name of the plaintiff and thereafter, the said land was divided as Sy. Nos. 41/1 and 41/2. According to defendant No. 1, land purchased in the name of Nooni Satyanarayana was after selling ancestral properties at Kallattur village in Andhra Pradesh and out of the proceeds received from the said sale and therefore, the suit scheduled property is ancestral property. It has also been averred that prior to this, Nooni Satyanarayana had bequeathed his assets in favour of his grand children namely, defendant Nos. 2 to 4, by executing a Will dated 19/08/1994 and therefore, plaintiff is not entitled to make a claim in respect of the suit scheduled property. Defendant No. 1 therefore, sought for dismissal of the suit. 6. In the written statement filed by defendant No. 2, relationship between the parties has been admitted. It has been averred that the suit scheduled property was the self acquired property of Nooni Satyanarayana, who was the grand father of defendant Nos. 2 to 4. That he had executed a Will in favour of defendant Nos. 2 to 4 and therefore, by virtue of the Will, they had succeeded to the estate of their grand father, Nooni Satyanarayana. The claim of the plaintiff to half share in the suit scheduled property has been rightly denied and therefore, defendant No. 2 also sought for dismissal of the suit. 7. Plaintiff filed reply to the written statement under Order 8, Rule 9 r/w Section 151 of Code of Civil Procedure (CPC), denying the allegations in Para 8 of the written statement and by contending that Nooni Satyanarayana had not executed any Will in favour of defendant Nos. 2 to 4 and that the Will relied up on by the defendants is a false and concocted one. 2 to 4 and that the Will relied up on by the defendants is a false and concocted one. 8. On the basis of the above pleadings, the trial Court framed the following issues and subsequently, additional issues:- "1. Whether the plaintiff proves that the suit scheduled property is self acquired property of late Nooni Satyanarayana? 2. Whether the plaintiff proves her share in the suit scheduled property? If so what is the share of plaintiff? 3. Whether the plaintiff is entitled for the mesne profit? 4. Whether the defendant proves that their court has got no jurisdiction to try the suit? 5. Whether suit is bad for non-joinder of necessary parties? 6. To what relief the plaintiff is entitled for? 7. What decree or order? Addl. Issue No. 1: Whether the defendant Nos. 2 to 4 proves that they have succeeded to estate of Nooni Sathyanarayana including the suit scheduled property by virtue of will Dt: 19.8.1995, alleged to have executed by Nooni Sathyanarayana as per para 3 of W.S?" 9. In support of her case, plaintiff examined herself through Power of Attorney holder, one Sri. Papa Rao Chowdari as P.W. 1 and produced 16 documents which were marked as Exs. P. 1 to P. 16, while, defendants examined 3 witnesses, D.W. 1 being defendant No. 2 and two other witnesses, are stated to be the attesting witnesses of the Will dated 19/08/1995. They produced one document, which was marked as Ex. D.1. On the basis of the said evidence, the trial Court answered Issue No. 1 and Addl. Issue No. 1 in the affirmative and Issue Nos. 2 to 5 in the negative and held that the plaintiff was not entitled to get any decree and accordingly, dismissed the suit. Being aggrieved by the judgment and decree, plaintiff preferred R.A. No. 254/2002 before the first appellate Court. 10. After hearing the parties, first appellate Court raised the following points for its determination: "1. Whether the finding recorded by the Trial Court that, suit property is the self acquired property of Late Nooni Sathyanarayana is correct? 2. Whether the finding recorded by the Trial Court that, late Nooni Sathyanarayana has bequeathed his assets including the suit property under a Will dated 19.08.1995 and by virtue of the Will defendants 2 to 4 have become the owner of the suit property is correct? 3. 2. Whether the finding recorded by the Trial Court that, late Nooni Sathyanarayana has bequeathed his assets including the suit property under a Will dated 19.08.1995 and by virtue of the Will defendants 2 to 4 have become the owner of the suit property is correct? 3. Whether the judgment and decree passed by the Trial Court calls for interference by this court? 4. What order?" It answered Point Nos. 1 and 2 in the negative and Point No. 3 in the affirmative and allowed the appeal by setting aside the judgment and decree dated 21/11/2002 passed in O.S. No. 222/1996. The first appellate Court decreed the suit of the plaintiff and held that the plaintiff was entitled to half share in the suit scheduled property and that defendant Nos. 2 to 4 were jointly entitled to other half share. A direction for enquiry regarding mesne profit was also issued. Being aggrieved by the said judgment and decree of the first appellate Court in R.A. No. 254/2002, defendant Nos. 2 to 4 have filed this second appeal. 11. When the matter was listed for admission of the appeal, this Court on admitting the appeal by order dated 03/11/2010, has framed the following substantial questions of law:- "The substantial questions of law that would arise for consideration are:- (1) Whether the law laid down by a Division Bench judgment of this Court in M. Prithviraj and others v. Smt. Leelamma N. and others [ 2008(4) KCCR 2333 ] has to be applied in which event the amended Section 6 of the Hindu Succession Act, 1956 would have to be applied prospectively or whether the decision of the Division Bench in Pushpalatha N. V. v. Padma and others (ILR 2010 KAR 1484) : ( AIR 2010 Kar 124 ) has to be applied which lays down that the amended Section 6 would operate retrospectively. Since the question is referred to larger Bench, await the opinion of the larger Bench. (2) Whether the lower appellate Court was justified in holding that the Will, which was set up by the appellant was executed under suspicious circumstances on the ground that it had been executed on the very day the stamp paper on which it was executed was purchased?" 12. I have heard learned counsel for appellants and learned counsel for respondent on the aforesaid substantial questions of law. 13. I have heard learned counsel for appellants and learned counsel for respondent on the aforesaid substantial questions of law. 13. It was contended on behalf of the appellants that the suit scheduled property is the self acquired property of Nooni Satyanarayana. In fact, the plaintiff also admitted the said fact in her plaint. The trial Court also gave a categorical finding to that effect. But the first appellate Court reversed that finding and held that the suit scheduled property was the ancestral property of Nooni Satyanarayana, which finding is incorrect for two reasons. Firstly, because such a finding was not called for in the appeal and secondly, the said finding is contrary to the subsequent portion of the judgment wherein, the learned first appellate Judge proceeded to deal with the validity of the Will. He contended that the first appellate Court ought not to have reversed the finding of the trial Court on the nature of the property and should have simply restricted himself to the validity of the Will dated 19/08/1995, which was propounded by defendant No. 2 in the suit and given a finding as to whether defendants i.e., the appellants herein were entitled to the suit scheduled property on the basis of the said Will. He contended that the findings given by the first appellate Court on the validity of the Will dated 19/08/1995 is erroneous for the reason that the points discussed by the learned Judge to hold that the Will was not proved, are incorrect in law. He contended that the Will was proved in accordance with law by examining two attesting witnesses. There were no suspicious circumstances in the execution of the Will. However, learned Judge has picked on certain circumstances or certain aspects on the execution of the Will to hold that it is shrouded and suspicious circumstance. He contended that when the trial Court had gone into this aspect of the matter and had held that the Will was proved in accordance with law and was therefore, valid, the said finding ought to have been accepted by the first appellate Court. He therefore contended that the substantial questions of law raised by this Court on the validity of the Will must be answered in favour of the appellants and thereby, the appeal may to be allowed. He therefore contended that the substantial questions of law raised by this Court on the validity of the Will must be answered in favour of the appellants and thereby, the appeal may to be allowed. It was also brought to my notice by the learned counsel on both sides that if ultimately, this Court is to come to a conclusion that the suit scheduled property was the separate property of Nooni Satyanarayana, then the only question to be answered is substantial question of law No. 2 and substantial question of law No. 1 does not arise for consideration. 14. Per contra, learned counsel for respondent No. 1 supporting the judgment and decree passed by the first appellate Court con- tended that insofar as the nature of the property is concerned, the appellants herein who are the respondent Nos. 2 to 4 before the trial Court had taken a stand that it was the self acquired property of Nooni Satyanarayana, which is also the case of the plaintiff/respondent herein. In fact, the appeal was not filed by the plaintiff on the question of the nature of the property. As the reliefs sought by plaintiff were declined to her, she was constrained to file the appeal seeking her share in the suit scheduled property on the premise that suit scheduled property was the self acquired property of the deceased Nooni Satyanarayana. Therefore, she very fairly contended that the finding given by the first appellate Court on the nature of the property is neither here nor there and that as the plaintiff had been granted relief by the first appellate Court, she did not find it necessary to file any appeal on the finding given by the said Court on issue No. 1. She however, supported the finding of the first appellate Court on Point No. 2 with regard to the validity of the Will and contended that the learned Judge was right in coming to the conclusion that the execution of the Will was shrouded in suspicious circumstances and this fact is further highlighted by the contrary evidence let in by D.Ws. 2 and 3, who are none other than the attesting witnesses to the Will Ex. D.1. 2 and 3, who are none other than the attesting witnesses to the Will Ex. D.1. She further contended the pleadings of defendant No. 1 in his written statement and the pleading of defendant No. 2 in his written statement are contradictory; that the will was not executed by the deceased testator at all and it was concocted before filing written statement, for the purpose of the case. That the trial Court had not examined all aspects regarding validity of the Will such as left hand thumb mark of the testator (LTM). Another suspicious circumstance was that the scribe of the Will was not examined. The place of the execution of the Will was not forthcoming from the Will. The said witnesses who were stated to be the attested witnesses were not aware of any aspects of the execution of the Will and therefore, the first appellate Court rightly appreciated these aspects of the matter and held that the Will was not proved and therefore, was invalid document in the eye of law. She therefore contended that if substantial question No. 2 is answered in favour of the respondent No. 1 herein, then, she would be entitled to the relief that has been granted by the first appellate Court and therefore, the appeal will have to be dismissed without going into substantial question No. 1. 15. Having heard learned counsel for the parties and on perusal of the material on record as well as the original records, the following facts emerge as admitted facts: "The relationship between the parties is admitted. Plaintiff and the first defendant are siblings being the children of deceased, Nooni Satyanarayana. It is also an admitted fact that their father had purchased an extent of about 7 Acres of land in Sy. No. 41 of Obajjihalli village in his name. The lands which have been purchased in the name of the plaintiff measuring 7 acres are not the subject-matter of the suit. Nooni Satyanarayana died on 15/10/1995. It is stated that he did not intestate but left behind a Will dated 19/08/1995. However, the validity of the Will is in question in the matter." 16. It is also noted from the plaint that the plaintiff has filed a suit seeking her half share in the suit scheduled property on the premise that the suit scheduled property was the self acquired property of her father. 17. However, the validity of the Will is in question in the matter." 16. It is also noted from the plaint that the plaintiff has filed a suit seeking her half share in the suit scheduled property on the premise that the suit scheduled property was the self acquired property of her father. 17. From the pleadings of defendant No. 1, it is noted that a contention was raised that the suit scheduled property was joint family property but at the same time, Will of father of defendant No. 1 dated 19/08/1995 [typed as 19/08/1994 in the written statement] has been adverted to and averred that in terms of the Will, the suit scheduled property had been bequeathed to defendant Nos. 2 to 4 herein. On the death of defendant No. 1, defendant Nos. 2 to 4, who are the children of defendant No. 1 and the legatees under the Will, impleaded themselves in the suit. Defendant No. 2 filed written statement contending that the suit scheduled property was not the joint family property but the self acquired property of his grand father who had the competency to bequeath the said property in favour of defendant Nos. 2 to 4. In fact, on these pleadings, the trial Court formulated Issue No. 1 as under:- "Whether the plaintiff proves that the suit scheduled property is the self acquired property of Nooni Satyanarayana". That issue was answered in favour of the plaintiff by holding that the suit scheduled property was indeed the self acquired property of late Nooni Satyanarayana. Proceeding on that basis, the trial Court held that late Nooni Satyanarayana had competency to bequeath the said property to defendant Nos. 2 to 4 and upholding the validity of the will, dismissed the suit. In appeal, the first appellate Court raised the following point for its consideration: "Whether finding recorded by the trial Court for suit scheduled property is the self acquired property of late Nooni Satyanarayana, is correct." The first appellate Court held that the suit scheduled property was not the self acquired property of late Nooni Satyanarayana. In fact, it is in the context of nature of the suit scheduled property, as to whether it was the joint family property or the self acquired property of late Nooni Satyanarayana, that the first substantial question of law arises. In fact, it is in the context of nature of the suit scheduled property, as to whether it was the joint family property or the self acquired property of late Nooni Satyanarayana, that the first substantial question of law arises. If it is held to be the joint family property of Nooni Satyanarayana's family as has been done so, by the first appellate Court, then the substantial question of law No. 1 raised by this Court is relevant. But on reading of the pleadings of the respective parties and the evidence on record, if it is held that the first appellate Court was not right in holding that it was the joint family property of the family and that it was the separate property of Nooni Satyanarayana, then, in my view, substantial question of law No. 1 would come otiose. It is in this regard that I have perused carefully, the pleadings of the respective parties as well as the evidence on record. 18. In the plaint, it has been averred by the plaintiff that land bearing Sy. No. 41 of Obajjihalli, originally measured about 15 acres and it was owned by one Smt. Kotramma of Davangere, and she sold 7 acres 35 guntas (including 10 guntas karab) to the father of the plaintiff and defendant, Late Nooni Sathyanarayana, in the year 1982 and remaining 7 acres was purchased by the plaintiff. After these transactions had taken place, the Sy. No. 41 was phoded as 41/1 in the name of the plaintiff and 41/2 in the name of Late Nooni Sathyanarayana. The suit scheduled property was purchased by the Late Nooni Sathyanarayana and it is his self acquired property. Said Nooni Sathyanarayana died during 1995, leaving behind him the plaintiff and the defendant as his legal heirs. So, after the death of said Nooni Sathyanarayana the plaintiff and the defendants have succeeded to the estate of deceased Nooni Sathyanarayana. In the written statement filed by defendant No. 1, it has been averred as under: "The allegation that the suit scheduled property was purchased by the late Nooni Sathyanarayana and it is his self-acquired property is incorrect and twisted to suit the convenient of the plaintiff. The father of the plaintiff and the defendant was owing considerable movable and immovable properties at Palatnodn village in Andhra Pradesh. The father of the plaintiff and the defendant was owing considerable movable and immovable properties at Palatnodn village in Andhra Pradesh. By selling all the ancestral property at Palatnodn village in Andhra Pradesh, the father of the plaintiff and the defendant had purchased 4 Acres of land in Arasapura Village. By selling the land purchased at Arasapura Village, the father of the plaintiff and the defendant has purchased the suit scheduled property and the property which is standing in the name of the plaintiff i.e. No. Survey No. 41/1. Thus, the suit scheduled property is to be the joint Hindu Family property of the father of the plaintiff and defendant and of the defendant. Thus, the plaintiff is not entitled to get equal share in the suit scheduled property as it is the joint Hindu Family property of the defendant and of his deceased father." Defendant No. 2 also filed his written statement wherein, he has taken a stand which is contrary to defendant No. 1, which reads as under: "Further averments made in same para survey No. 41 was further phoded as 41/1 in the name of the plaintiff and 41/2 in the name of the Nooni Sathyanarayana is not disputed. Further averments in the same para of the plaint that the suit schedule agricultural land was purchased by late Nooni Sathyanarayana and it is self acquired property is not disputed. It is also not disputed that the said Nooni Sathyanarayana died on 15/10/1995. The said Nooni Sathyanarayana left behind the present defendant Nos. 2 to 4, the defendant and the plaintiff are legal heirs to the estate of the deceased. The present defendants 2 to 4 have succeeded to the estate of deceased Nooni Sathyanarayana." 19. Despite the aforesaid admissions in the pleadings, the learned trial Judge had framed Issue No. 1 with regard to the nature of the suit scheduled property and held on evidence that the suit scheduled property was self acquired property of deceased Nooni Satyanarayana. In fact, the plaintiff had sought partition and separate possession of half share in the suit scheduled property on the premise that it was the self acquired property of her late father. In fact, the plaintiff had sought partition and separate possession of half share in the suit scheduled property on the premise that it was the self acquired property of her late father. Though defendant No. 1 had taken a contention that it was joint family property in his written statement, he died even prior to letting in his evidence and therefore, there has been no evidence let in by any party to the effect that the suit scheduled property was the joint family property of the family. On the other hand, it has been admitted by defendant No. 2 that the suit scheduled property was the self acquired property of his grand father and based on the said admission also, it has to be held that the suit scheduled property was indeed the self acquired property of deceased Nooni Satyanarayana. Therefore, the first appellate Court was not right in formulating a point for consideration referred to supra and giving a finding, which is contrary to the pleadings as well as the evidence by holding that the suit scheduled property was the joint family property of the family. In fact, that was nobody's case and as I have already stated, it was not necessary to frame any issue in that regard. Therefore, the judgment of the first appellate Court on the nature of the property is incorrect and therefore, on substantial Question No. 1, finding would have to be reversed holding that the suit scheduled property was the self acquired property of late Nooni Satyanarayana. Such a finding is given on the basis of the pleadings and evidence in the matter. Then, in my view, substantial question of law raised by this Court would become redundant and therefore, it is not necessary to answer the said question. As already noted, the said question was based on the contrary finding given by the first appellate Court. Hence, it would not be necessary to apply Section6 of the Hindu Succession Act, 1956 insofar as the suit scheduled property is concerned. 20. Then, the next substantial question of law raised by this Court would have to be considered i.e., with regard to the validity of the Will dated 19/08/1995, executed by late Nooni Satyanarayana, bequeathing the suit scheduled property in favour of defendant Nos. 2 to 4. In that regard, the trial Court upheld the validity of the Will and consequently, dismissed the suit. 2 to 4. In that regard, the trial Court upheld the validity of the Will and consequently, dismissed the suit. The first appellate Court raised Point No. 2 for its consideration and held that Will dated 19/08/1995 was not valid and therefore, held that the plaintiff was entitled to half share in the suit scheduled property. While considering the validity of the Will, the first appellate Court noted that Ex. D. 1 was a typed document. It had a thumb impression which was attested by a person. There were in fact, four witnesses, who had attested the Will namely, Gangarao, Halappa, Papa Rao and Subbarao. D.Ws. 2 and 3 are the attested witnesses of the Will. On going through their evidence, the first appellate Court has held that execution of the Will was shrouded in suspicious circumstance and therefore, it was not a valid document and thereby, holding that the Will could not be acted upon. 21. The appreciation of evidence by the first appellate Court on this aspect has been considered in light of the actual evidence, which has been let in by the deponents. "(a) D.W. 1 is the person who has got the Will marked as Ex. D.1 and he has stated that the suit scheduled property being self acquired property of his grand father, had the competency to execute a Will in favour of defendant Nos. 2 to 4. D.W. 2 - Halappa is one of the attesting witnesses of Ex. D.1. In his cross-examination in chief, he has stated at length as to what transpired prior to the execution of the Will and also the events that occurred at the time of the execution of the Will. He has categorically stated that the executor of the Will explained what the contents of the Will ought to be to the scribe, who reduced the same in to writing, which was read over and thereafter, the executant affixed his signature on the Will i.e., his LTM. During recording of his evidence, he identified the LTM of the testator as well as the signatures of Papa Rao, Subba Rao, Gangarao and Halappa. According to him, the Will was executed in Davanagere and parties had arrived from Maganahalli Kodi Camp, for me purpose of execution of the Will. During recording of his evidence, he identified the LTM of the testator as well as the signatures of Papa Rao, Subba Rao, Gangarao and Halappa. According to him, the Will was executed in Davanagere and parties had arrived from Maganahalli Kodi Camp, for me purpose of execution of the Will. He has stated that they reached the office of the Sub-Registrar at 11:00 a.m. and after the completion of the execution of the Will, had left around 1.30 p.m. in his cross-examination, he has admitted the fact that deceased Nooni Satyanarayana had informed him and also Gangaram to be the attesting witnesses of the Will and that they should accompany him to Davanagere, eight days prior to the execution of the Will. He has stated that the scribe himself had purchased the stamp paper required for writing the Will and that he had put in his signature on the Will after the testator had signed, i.e., put his thumb impression. (b) D.W. 3 is Gangarao, another attesting witness, who in his examination has stated that the Sub-Registrar's office and Taluk Office at Davanagere are adjacent to each other and his examination-in-chief is similar to what has been deposed by D.W. 2." In the cross-examination, he has also stated that he was present when the document was executed and that he was one of the attesting witnesses. Of course, he has stated that he does not know the name of the scribe which is inconsequential. 22. Before giving a finding as to whether the first appellate Court was right in holding that the Will was not proved in accordance with law, it is necessary to advert to certain judicial dicta. (a) one of the celebrated decision of the Hon'ble Supreme Court on proof of Will, reported in AIR 1959 SC 443 in the case of H. Venkatachala Iyenger v. B.N. Thimmajamma, wherein, Hon'ble Supreme Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under: "18. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters." In fact, the legal principles with regard to the proof of the Will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the Will must examine one or more attesting witnesses and the onus is based on the propounder to remove all suspicious circumstances with regard to the execution of the Will. In the above noted case, the Hon'ble Supreme Court has stated that the following three aspects must be proved by a propounder:- "(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document on his own free will, and (ii) 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 propounder, and (iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein." (b) In Jaswant Kaur v. Amrit Kaur and others [ 1977 1 SCC 369 ] : ( AIR 1977 SC 74 ), the Hon'ble Supreme Court pointed out that when a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence let in by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstances surrounding the making of the will. (c) In Bharpur Singh and others v. Shamsher Singh [ 2009 (3) SCC 687 ] at para 23 : ( AIR 2009 SC 1766 , 17-18), Hon'ble Supreme Court has narrated a few suspicious circumstance as being illustrative but not exhaustive in the following manner: "23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) 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. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts." "24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. (viii) Incorrect recitals of essential facts." "24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with." 23. Therefore, in light of the aforesaid dicta of the Hon'ble Supreme Court, the appreciation of the evidence of the Courts below on the validity of the Will would have to be considered. 24. In this regard, learned counsel for the respondents submitted that Ex. D. 1 i.e., the Will was concocted only for the purpose of the case and that there was an insertion with regard to the date of the Will in the written statement of defendant No. 1. That the left hand thumb mark of the testator of Ex. D. 1 was not compared with the admitted LTM of Ex. P.2 -Sale Deed dated 06/06/1982 by which the suit scheduled property was purchased by the testator. Thirdly, it was contended that the scribe was not examined in the matter. That there are contradictions in the evidence of D.Ws. 2 and 3 who are stated to be the attesting witnesses of Ex. D.1. Therefore, the execution of Ex. D.1 is shrouded in suspicious circumstance. 25. As far as the written statement of defendant No. 1 is concerned, no reliance could be placed on that pleading of defendant No. 1 as he died prior to letting in his evidence and therefore, the contents of this written statement cannot be taken into consideration for the purpose of deciding the matter. In order to substantiate the contention that the Will was a fabricated or concocted document which came into existence only for the purpose of the case is concerned, there has been no substantiation to that effect by the plaintiff. But be that as it may. Having regard to what has been stated by D.Ws. 2 & 3, I find that their evidence with regard to the execution of the Will cannot be held to be contradictory to each other or for that matter not having a bearing on the validity of the Will. But be that as it may. Having regard to what has been stated by D.Ws. 2 & 3, I find that their evidence with regard to the execution of the Will cannot be held to be contradictory to each other or for that matter not having a bearing on the validity of the Will. In fact, emphasize was made on the fact that the place of execution of the Will was not correctly stated by D.Ws. 2 or 3. One witness stated that it was in the Taluk office and other witness stated that it was in the Sub-Registrar's office whereas, it has been clarified in the cross-examination of D.W. 2 that the Taluk office and Sub-Registrar's office were adjacent to each other. Nothing contra has been elicited in the cross-examination with regard to these aspects. Also, non-examination of the scribe would not imply that the Will is a got up document. 26. In fact, a reading of the Will would clearly show that it is a simple testament and the testator had intimated to the scribe as to what he intended to bequeath and to whom and in simple Kannada language the scribe has noted down the bequest of Suit Scheduled Property to the legatees. It is also stated in the Will that insofar as Sy. No. 41/2 is concerned, an extent of 7 Acres of land was purchased in the name of the plaintiff i.e., daughter of the testator. The testator has also written that his son i.e., defendant No. 1 being unwell and not able to understand worldly matters, he has bequeathed the suit scheduled property to his grand children - defendant Nos. 2 to 4. There is no unnatural bequest in the Will, having regard to the reasons assigned by the testator as to why he was not bequeathing the suit scheduled property to his sons. Also, the property purchased by the testator in the name of the plaintiff is not part of the Will. The fact that seven acres of land purchased in the name of plaintiff by the testator was to remain with the plaintiff clearly indicates the intention of the testator. The said property was to be her exclusive property, while the suit scheduled property was to be succeeded to by his son's sons, defendant Nos. 2 to 4 herein. 27. The fact that seven acres of land purchased in the name of plaintiff by the testator was to remain with the plaintiff clearly indicates the intention of the testator. The said property was to be her exclusive property, while the suit scheduled property was to be succeeded to by his son's sons, defendant Nos. 2 to 4 herein. 27. On reconsidering the judgments of the Court's below, it would clearly go to show that the execution of the Will is not shrouded in suspicious circumstances. After all, the grand children are the legatees of the suit scheduled property belonging to their grandfather and the grandfather on account of his son's sickness and ill-health, intended to bequeath his property in favour of his grand children, which is a natural thing to have done. 28. The left hand thumb mark on Ex. D.1 and also admitted LTM of Ex. P.2 resemble each other on a comparison. It was not necessary for the propounder to have got the LTMs examined or compared by an expert. 29. But the first appellate Court while appreciating the evidence on record and taking into consideration the aspects such as, the place of the execution of the Will, as to whether it was in the Sub-Registrar's office or Taluk office, despite the evidence that the offices were adjacent to each other, scribe not being examined in the matter and the fact that the Will was not registered though it was executed in the Sub-Registrar's office, has come to a conclusion that there has been no valid will in the eye of law. I find that the first appellate Court has not correctly appreciated the evidence with regard to the validity of the Will and therefore, the answer given on that aspect is wholly incorrect. 30. In the circumstances, substantial question of law No. 2 has to be answered in the negative by holding that the lower appellate Court was not justified in holding that the Will was executed under suspicious circumstance. The said point has to be answered in favour of the appellants and against the respondent. 31. In the circumstances, the appeal is allowed. The suit of the plaintiff is dismissed. Having regard to the relationship of the parties they are directed to bear their respective costs.