JUDGMENT : The plaintiff in O.S.136/2006 on the file of Senior Civil Judge, Sirsi has preferred this appeal challenging the judgment and decree dated 17.08.2010. By referring to the parties with respect to their positions in the suit, the pleadings put in a nutshell are as follows:- 2. Plaintiff is the widow one Narayan Devaru Hegde, who died on 13.07.2006. The defendants 1 to 5 are her children. During the time when plaintiff’s husband was alive, because of lack of understanding between the members of the family, the 3rd defendant became separated by executing a release deed on 17.03.1989. On 08.03.1994, there took place a partition of the joint family properties through a registered partition deed and the defendants 1 and 2 got separated. It appears that a suit 12/1999 came to be filed by one of the members of the family and this suit was referred to Lok Adalath where the partition dated 08.03.1994 was cancel led and the defendants 1 to 3 readjusted their shares in the joint family. In the compromise, the plaint “A & C” schedule properties were allotted to the share of the plaintiff and her husband. “B” schedule property consists of certain deposits in various banks and financial institutions. The plaintiff stated that she had half share in the plaint schedule properties during the lifetime of her husband, and after his death, she became the absolute owner of the entire property. None of the defendants 1 to 5 has any right in the schedule property and since the defendants 1 to 5 asserted that they succeeded to the share of their father in the schedule property after his demise and that some of the defendants 1 to 5 stated that they would withdraw the deposits from the bank as they had been nominated, the plaintiff brought a suit seeking declaration that she is the absolute owner of the suit property and permanent injunction restraining the defendants 1 to 5 from interfering with her possession and enjoyment of the schedule property. The plaintiff also sought an alternative relief to the effect that in case the court would come to the conclusion that the defendants 1 to 5 also have a share in the suit property, partition be effected to the extent of her 7/12th share and for its possession thereof. 3. The plaintiff also sought an alternative relief to the effect that in case the court would come to the conclusion that the defendants 1 to 5 also have a share in the suit property, partition be effected to the extent of her 7/12th share and for its possession thereof. 3. The 1st defendant, in his written statement admitted the relationship and averments regarding the partition that had been effected in the past. But he took up a specific contention that his parents did not live separately in the house described in “C” schedule after the partition, rather they were living with him. He alleged that his mother i.e. the plaintiff had never been a good wife of his father. He denied that the plaintiff has absolute right over the deposits shown in “B” schedule and that she alone succeeded to the share of her father in respect of “A & C” schedule properties. He asserted that his father nominated him in respect of the deposits shown in “B” schedule of the plaint and that his father, on 15.03.2005 had executed a will bequeathing all his movable and immovable properties to him and thus, the plaintiff cannot claim declaration of her title or partition in the alternative. He alleged that the plaintiff was instigated by other defendants to institute the suit and the same has to be dismissed. 4. The 3rd and 5th defendants also filed their written statement admitting the earlier transactions of partition within the family. Although they admitted that their parents started living separately in “C” schedule property, they denied that entire “B” schedule property was given exclusively to their parents. They stated that the plaintiff had a half share in the entire suit property and that she did not become the absolute owner of the entire suit property after the death of her husband. They also denied that they interfered with plaintiff’s possession of the property given to her share and stated further that the plaintiff filed the suit only with an intention to knock of the entire deposits mentioned in “B” schedule. They prayed for dismissal of the suit. 5. The Trail Court framed the following issues: 1. Whether the plaintiff proves that, the description of the suit schedule properties as mentioned in the plaint as correct? 2. They prayed for dismissal of the suit. 5. The Trail Court framed the following issues: 1. Whether the plaintiff proves that, the description of the suit schedule properties as mentioned in the plaint as correct? 2. Whether the plaintiff further proves that, suit schedule A and C property was allotted to the share of her husband and herself as per the partition effected in the compromise decree passed in O.S.12/99 and after the said partition, herself and her husband started residing in ‘C’ schedule property as alleged? 3. Whether the plaintiff further proves that after the demise of her husband, she has become the owner of the suit schedule immovable and movable properties as alleged? 4. Whether the plaintiff further proves that, in the alternative, she is also entitled for 7/12th share in the suit schedule properties in case of partition as claimed? 5. Whether the plaintiff further proves that the defendant No.1 to 5 are denying her rights in ‘A’ and ‘C’ properties and trying to with draw ‘B’ schedule properties on the guise that they are the nominees as alleged? 6. Whether the defendant No.1 proves that he has become the owner of all the suit properties by virtue of the will dtd: 15.03.2005, alleged to have been executed by his father Narayan Hedge in his name as contended in his written statement? 7. Whether court fee paid on the plaint is correct and valuation of the suit so made is correct? 8. Whether the plaintiff is entitled for the relief of declaration as prayed? 9. Whether the plaintiff in the al ternative is entitled for the relief of partition as claimed? 10. Whether the plaintiff is entitled for injunction as claimed. 11. To what Order of decree? 6. Thereafter, the plaintiff adduced evidence as P.W.1 and produced 37 documents as per Ex.P.1 to P.37. The 1st defendant adduced evidence as D.W.1 and also examined one Rajendra Ananth Kimanekar as D.W.2. From the defendant’s side 16 documents as per Ex.D.1 to D.16 were marked. After appreciating the evidence, the trial court partly decreed the suit holding that the plaintiff was entitled to half share in “A & C” schedule properties and only Rs.1,00,001/- in “B” schedule property. The defendants are permanently restrained from interfering with plaintiff’s half share in schedule “A & C” properties. 7. After appreciating the evidence, the trial court partly decreed the suit holding that the plaintiff was entitled to half share in “A & C” schedule properties and only Rs.1,00,001/- in “B” schedule property. The defendants are permanently restrained from interfering with plaintiff’s half share in schedule “A & C” properties. 7. The trial court, while appreciating the evidence, referred to Ex.D.3, the partition deed dated 08.03.1984, and held that the properties described in the “first share” was allotted to the plaintiff’s husband. The properties allotted to the plaintiff’s husband were land in Survey No.6/1 measuring 7 guntas 13 annas and a portion of the house measuring 15 x 53.6 ft. But there is nothing to show in the partition deed that the plaintiff and her husband took these properties together. Then with regard to the compromise recorded in O.S.12/1999, Ex.P.32 is the certified copy of the compromise decree from which it can be seen that house bearing No.8/2 was given to the plaintiff and her husband. In survey No.6/1, the plaintiff and her husband were allotted 7 guntas 13 annas of land. The trial court also noticed one admission given by D.W.1 that “A” schedule property and a portion of the house mentioned in “C” schedule were given to the share of plaintiff and her husband. With regard to the will propounded by the 1st defendant, the trial court came to the conclusion that in view of the evidence led by D.W.1 and the attestor examined as D.W.2, the execution of the will was proved. The trial court noticed the fact that there were no suspicious circumstances in execution of the will by Narayan Devaru Hegde. If there were to be any suspicious circumstances, the plaintiff should have pointed out them. The evidence of D.W.2, the attestor to the will could be believed. Merely because D.W.1 was purchasing hardware items from the shop of D.W.2, it cannot be said that his evidence has to be disbelieved. However, the trial court came to conclusion further that the 1st defendant i.e. D.W.1 cannot lay claim on the entire property described in “A and C” schedules. The will clearly indicates that the father made the will in favour of 1st defendant only in respect of his share. With regard to the deposits made in “B” schedule, the evidence discloses that those deposits were made by Narayan Devaru Hegde from his own earnings. The will clearly indicates that the father made the will in favour of 1st defendant only in respect of his share. With regard to the deposits made in “B” schedule, the evidence discloses that those deposits were made by Narayan Devaru Hegde from his own earnings. Although 1st defendant was shown as nominee of all those deposits, he can receive the amount as per the will. The plaintiff is only entitled to Rs.1,00,001/- and nothing more. So with these observations, the trial court came to the conclusion that the plaintiff had only half share in “A and C” schedule property. She cannot claim that she succeeded to the other half share after the demise of her husband. Her claim in respect of “B” schedule property cannot be recognized. 8. Assailing the findings of the trial court, the learned counsel for the appellant/plaintiff argued that after the partition, there did not take place one more division between the plaintiff and her husband. They both enjoyed the properties as a single unit. The same property numbers continued in the revenue records. Only plaintiff was entitled to succeed to the share of her husband. Section 6 of Hindu Succession Act (as it stood before the Central amendment) cannot be made applicable because the children of the plaintiff cannot be called as members of joint family. Once there was a division of joint family property, there was disruption of the joint family and any share that was given to the plaintiff and her husband jointly became their exclusive property. If one share holder dies, the share of the deceased devolved on the other by survivorship. The trial court should have examined the case in this angle. Thus, the plaintiff becomes entitled to declaration in respect of entire “A and C” schedule properties. 9. With regard to will, the learned counsel argued that its due execution was not proved by the propounder and that he also failed to prove that the said will was free from suspicious circumstances. The evidence of D.W.2 cannot be considered because from his evidence itself it can be made out that he did not disclose the will for quite a long time. When he clearly admitted that he went to attend the 12th day ceremony after death of Narayan Devaru Hegde, he did not disclose the will to anybody. The evidence of D.W.2 cannot be considered because from his evidence itself it can be made out that he did not disclose the will for quite a long time. When he clearly admitted that he went to attend the 12th day ceremony after death of Narayan Devaru Hegde, he did not disclose the will to anybody. If really he was an attestor, he should have said about the will at that time itself. The second point that he argued about the will was that the signature of the testator is not found on each page of the will, signature is there only on the last page. This is also one of the suspicious circumstances. Thirdly he argued that the house given to the share of the plaintiff and her husband measures 15 x 56 ft. If this portion is again divided, the measurement of the house will come to 7.5 x 56 ft and it is highly impossible for anybody to live in a house like this. Therefore, it was highly impossible that Narayan Devaru Hegde would have thought of bequeathing his half share in the house to his son. This is something unnatural. According to him, this also another reason to doubt the genuineness of the will. Therefore this will was set up by the 1st defendant. With regard to “B” schedule property, he argued that 1st defendant is only shown as a nominee to receive the benefits of deposits after their maturity. All the members of the family have a right to claim in those deposits. In support of his arguments, he has aptly relied on the following judgments reported in:- i. AIR 1972 SC 1279 , in the case of M.N. Aryamurthi and another v. M.L. Subbaraya Setty (dead) by his L.Rs and others. ii. AIR 1972 SC 2492 , in the case of Pushpavati and others v. Chandraja Kadamba and others. iii. AIR 1976 SC 794 , in the case of Navneet Lal alias Rangi v. Gokul and others. iv. 2009 SAR (Civil) 875, in the case of Shirpa Sengupta v. Mridul Sengupta and others. v. 2008 SAR (Civil) 651, in the case of Shymal Kanth Guha (Dead) through L.Rs and others v. Meena Bose. vi. 2009 SAR (Civil) 173, in the case of Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and others. vii. iv. 2009 SAR (Civil) 875, in the case of Shirpa Sengupta v. Mridul Sengupta and others. v. 2008 SAR (Civil) 651, in the case of Shymal Kanth Guha (Dead) through L.Rs and others v. Meena Bose. vi. 2009 SAR (Civil) 173, in the case of Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and others. vii. AIR 1968 SC 1332 , in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others. viii. ILR 1988 KAR 1095, in the case of Indira Bai v. Professor Shyamasundar. 10. Meeting the argument of the appellant’s counsel, the respondent’s counsel argued that on 09.09.2005, the amendment brought to section 6 of the Hindu Succession Act was given into force. Narayana Devaru Hedge died on 13.07.2006. The death was after the amendment was given into effect. Question of survivorship as applicable before amendment cannot be applied after the amendment. Moreover section 30 of the Hindu Succession Act provides for willing away the undivided interest. If for this reason Narayana Devardu Hegde executed the will in favour of his son i.e., the 1st defendant, the plaintiff cannot claim to have succeeded to the share of her husband. 11. The next point that he argued was that the plaintiff could have filed rejoinder to the written statement denying the execution of the will and pointing out the suspicious circumstances surrounding the will. In that event, the propounder could have dispelled the suspicious circumstances. Even otherwise, in the evidence placed by the defendant No.1, sufficient materials are available to come to a definite conclusion that there are no suspicious circumstances. In the will, reason is given as to why, Narayana Devardu Hedge beaquathed his share in schedule “A and C” and also entire “B” schedule to 1st defendant. The relationship between the plaintiff and husband was not good, however Narayana Devaru Hegde out of respect towards his wife, gave her Rs.1,00,001/-. This shows that plaintiff was not ignored. The court below has examined this aspect of the matter. He further argued that from the evidence of the plaintiff, it is possible to make out that the testator had a sound state of mind and was physically fit. The testamentary capacity is not disputed. Suggestions are given to D.W.1 in such a way that the testator was quite hale and health and that he was very much worldly wise. He further argued that from the evidence of the plaintiff, it is possible to make out that the testator had a sound state of mind and was physically fit. The testamentary capacity is not disputed. Suggestions are given to D.W.1 in such a way that the testator was quite hale and health and that he was very much worldly wise. Suggestion is also given that the entire deposits mentioned in schedule “B” of the plait was self acquisition of Narayana Devaru Hegde. 12. He further argued that, the signature of the testator is found only on the last page. The will was written on one full sheet paper. There is consistency in the hand writing; naturality and continuity in the will can also be seen. Just because signature of the testator is found on the last page, it is not a ground to disbelieve it. The evidence of P.W.2 proves that he and others were attesters to the will. This witness is not discredited. So execution of the will is duly proved. 13. With regard to not giving details of deposit in the will, he argued that it is the style of writing. The deposits not only included those mentioned in schedule “B” but also those deposits probably the testator intended to make from his future earnings. Therefore, it was his argument that, there are no grounds to interfere with the judgment of the trial court. 14. In the back drop of the arguments of the learned counsel for the appellant and the respondent, the following points can be formulated for discussion. i. Can the plaintiff, after the death of her husband, claim to have succeeded to the share of her husband in A and C Schedule property? ii. Whether the trial court has erroneously held that the will dated 15.03.2005 has been proved and that the said will is free of suspicious circumstances? iii. What conclusion? Point No. i:- 15. There is no dispute with regard to partition dated 08.03.1994 and a subsequent compromise recorded in O.S.12/1999 on 18.08.1999. In the compromise, “A & C” schedule properties were given to the plaintiff and her husband. The question therefore that arises is, did they take those two properties as tenants in common or joint tenants? 16. Joint tenancy means ownership by two or more persons of the same property. In the compromise, “A & C” schedule properties were given to the plaintiff and her husband. The question therefore that arises is, did they take those two properties as tenants in common or joint tenants? 16. Joint tenancy means ownership by two or more persons of the same property. The death of one of them results in transfer of his or her ownership to the surviving owner. But in the case of tenancy in common, the interest of a deceased passes at his death to his representatives. 17. By virtue of compromise, if “A and C” schedule properties were allotted to the share of the plaintiff and her husband, they held those two properties as joint tenants; they did not become tenants in common. The learned counsel for the appellant has referred to decisions of Supreme Court in the case of M.N. Aryamurthi and another Vs. M.L. Subbaraya Setty ( AIR 1972 SC 1279 ) and Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna & others (2016 SAR (Civil) 198) and decision of the Division Bench of this court in Indira Bai Vs. Prof. Shyamasundar (ILR 1988 Ker 1095). Reference is made to these decisions probably to make out a case for the appellant that she only succeeded to her husband’s share in “A and C” schedule properties. The principles laid down in these decisions cannot be applied here, nor that the appellant can assert her right under sub-section 1 or 2 of Section 14 of Hindu Succession Act. Her right to the extent of half share in “A and C” schedule properties remains intact. But for the will, she could have asserted right of succession by survivorship on her husband’s half share. Whether it is a case of joint tenancy or tenancy in common, the moment a will was executed by her husband in favour of 1st defendant, she has to confine her claim to her half share only. Narayana Devaru Hegde had every right to execute the will only in respect of his half share; therefore, the appellant cannot claim succession to her husband’s share in “A and C” schedule property. This point ins answered in negative. Point No. ii:- 18. In regard to will marked Ex.D.1, the evidence of D.W.1 and D.W.2 needs to be scrutinized. The 1st defendant is the propounder of the will which is unregistered. This point ins answered in negative. Point No. ii:- 18. In regard to will marked Ex.D.1, the evidence of D.W.1 and D.W.2 needs to be scrutinized. The 1st defendant is the propounder of the will which is unregistered. He produced the original will and for proving its execution, he examined one of the attesters namely Rajendra Anantha Kimanekar as D.W.2. The will shows that he executed it only in respect of his half share in A and C schedule property given to him and his wife under the compromise decree and also entire deposits described in B schedule. Though the plaintiff has stated in the plaint that she and her husband jointly earned the money that are kept in deposits as shown in “B” schedule, while D.W.1 was cross-examined, a positive suggestion was given to him that entire “B” schedule property was earned by his father. This suggestion makes it clear that deposits of money belonged to the testator and that he had full testamentary capacity in respect of “B” schedule property also. 19. The oral evidence of D.W.2 proves execution of will by Narayan Devaru Hegde. He has clearly deposed that he was asked by the testator i.e. Narayan Devaru Hegde to be an attestor to the will that he intended to make. He has given the names of other attestors and the scribe of the will besides narrating the entire sequence of execution of will. Cross-examination of this witness is of no avail, he has not been impeached and there are no good reasons to discard his testimony. On perusing the will, it becomes amply clear that its execution is in conformity with requirement of law and hence, the finding given by the Trial Court with regard to due execution of the will can be endorsed. 20. The further finding of the Trial Court is that the will is free of suspicious circumstances. Whenever a will is propounded, necessarily the burden is on the propounder to remove all the suspicious circumstances. The learned counsel has referred to the judgment of the Supreme Court in the case of Pushpavati and others v. Chandraja Kadamb and others, (1972 SC 2492), where it has been held that the propounder has a duty to explain to the satisfaction of the court that the will is free from suspicious circumstances. The learned counsel has referred to the judgment of the Supreme Court in the case of Pushpavati and others v. Chandraja Kadamb and others, (1972 SC 2492), where it has been held that the propounder has a duty to explain to the satisfaction of the court that the will is free from suspicious circumstances. On the same principle he has referred to two more decisions of the Supreme Court in the case of Gorantla Thataiah v. Thotakura Venkat Subbayya and others ( AIR 1968 SC 1332 ) & Lalitaben Jayantilal Popat v. Pradnaben Jamnadas Kataria and others [2009 SCR (Civil) 173] It is necessary therefore now that the evidence available in this regard has to be reexamined. It is also a point to be mentioned here that if the party affected by the will has a specific ground which according to him invalidates the will , it must be pointed out by him so that the propounder can offer suitable explanation. 21. The first objection taken by the appellant’s counsel is that the will does not contain signature of the testator on all its pages. This has an answer. The will is handwritten on a full sheet paper (now partly torn probably while handling the records). D.W.2 has clearly stated that the testator did not sign on all the pages and that he signed only on the last page. When D.W.2 has clearly deposed that the testator did sign on the will in his and other attestors’ presence, absence of testator’s signature on the first and second page of the will matters least. Moreover, the signature of the testator is found just above the endorsement made by the attestors to the effect that the testator did sign in their presence. 22. With regard to mental capacity of the testator, P.W.1 herself has stated that her husband was quite healthy, very determinate and was taking decisions after giving reflection on the matters. It has been suggested to D.W.1 in his cross-examination that his father was a contractor for over 30-35 years, that he used to participate in the Panchayats for resolving the disputes of others and that he was a good man besides being wise. It is nobody’s case that he was mentally unfit to make a will. This much of evidence removes the suspicion regarding his state of mind of testator. 23. It is nobody’s case that he was mentally unfit to make a will. This much of evidence removes the suspicion regarding his state of mind of testator. 23. Another important ground of suspicion made out is as to why the testator excluded his wife and other children. The learned counsel argued vehemently that exclusion of other members of the family is a good reason to disbelieve the will. The learned counsel for the appellant has placed reliance on the judgments of the Supreme Court in the case of Navneet Lal Alias Rangi v. Gokul and others ( AIR 1976 SC 794 ), where it is held as below:- “In construing the language of the will the court is entitled to put itself into the testator’s armchair and is bound to bear in mind also other maters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would words in a particular sense. But all this is solely an aid to arriving at a right construction of a will and to ascertaining the meaning of its language when used by the particular testator in that document.” 24. In another judgment of the Supreme Court in the case of Shamlal Kanth Guha (D) through LRs and others v. Meena Bose (2008 SAR (Civil ) 651), it is held that in construing the language of the will, the Court is entitled to put itself into the testator’s armchair. The intention of the testator can be culled out not only upon the reading the will on its entirety but also the background facts and circumstances of the case. Now in the light of these principles, if the will is subjected to scrutiny to decipher the intention of the testator in excluding the other members of his family, the answer is found firstly in the will itself. It is clearly written that only the 1st defendant was very dear and affectionate to the testator among his children. He was the only one who was living with the testator and looking after him in his old age. The 1st defendant has stated in the written statement that that his mother was not a good wife to his father. It is clearly written that only the 1st defendant was very dear and affectionate to the testator among his children. He was the only one who was living with the testator and looking after him in his old age. The 1st defendant has stated in the written statement that that his mother was not a good wife to his father. Added to this, D.W.2 has also stated that once the testator himself had told him that the relationship between him and his wife was not good. This may be the reason for excluding his wife. But very importantly it has to be mentioned here that the testator did not totally ignore his wife. He made a provision for her by stating that that the deposit of Rs.1,00,001/- he had made in her name should belong to her. For not giving anything to other children, the reasons could probably be that the other sons were living separately by taking their shares and the daughters had been married. Therefore, the intention of the testator to make an arrangement in the will can be very clearly gathered and in this regard also there is no circumstance affecting the will. 25. The learned counsel for the appellant has made a reference to the judgment of the Supreme Court in the case of Gorantla Thataiah (Supra) probably for another reason that 1st defendant, according to him, might have played major role in getting the will executed in his favour and taking maximum benefit under it. This is another circumstance that invalidates the will, according to him. But this argument cannot be accepted. There is no evidence that he played a major role. The evidence of D.W.2 clearly shows that the 1st defendant was not at all aware of the will made by his father. D.W.2 has clearly stated that after execution of the will, the testator kept the will with himself; that even after execution of the will, the 1st defendant used to come to his shop and that he never told the 1st defendant about the will made by his father; that he attended the 12th day ceremony after death of testator and at that time also he did not tell about the will to any of the children of the testator and that he disclosed about the will to the 1st defendant after 3 months. The answer given by D.W.1 in the cross-examination also shows that he came to know about the will from D.W.2 two months after the death of his father. These answers rule out the possibility of any major role played by the 1st defendant for execution of the will by his father. The reason why he is sole bequeathee under the will is already discussed above. Therefore, it can be concluded that the will is free of suspicious circumstances. The findings given by the trial court in this regard have to be upheld and point No. (ii) needs to be answered in negative. Point No. iii:- 26. Before giving conclusion, another point to be mentioned here is with regard to nomination of 1st defendant to the deposits mentioned in “B” schedule. It is true that nomination does not give exclusive right to the nominee. The learned counsel for the appellant has referred to a Supreme Court judgment in the case of Shipra Sengupta Vs. Mridul Sengupta and others (2009 SAR (Civil) 875) on this point. Here the 1st defendant is not only the nominee, but also a legatee under the will marked Ex.D.1, entitled to all the deposits except an amount of Rs.1,00,001/- given to the plaintiff. However, on 26.07.2017 upon an application made by the plaintiff/appellant, an amount of Rs.5,00,000/- was ordered to be released in her favour as she wanted money to meet her medical expenses. The 1st respondent/1st defendant also gave consent this release of money. Therefore she is entitled to retain that amount of Rs.5,00,000/- also. Except a modification to this extent, judgment of the trial court needs to be confirmed, consequently appeal fails. No orders to costs.