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2020 DIGILAW 2296 (KAR)

Champa Poojari v. Manji Poojarthi

2020-11-24

JYOTHI MULIMANI

body2020
JUDGMENT : JYOTHI MULIMANI, J. 1. Sri. M.J. Alva., learned counsel on behalf of Sri. Nagaraja Hegde for appellant has appeared in-person and Sri. Vyasa Rao. K.S., learned counsel for respondent Nos. 1, 2, 7 and 8 has appeared through video conferencing. Respondent Nos. 3, 4, 5 and 6 are served but remained unrepresented. 2. This appeal is from the Court of the Senior Civil Judge, Kundapura confirming the judgment and decree passed by the II Additional Civil Judge (Jr. Dn.) & JMFC, Kundapura. 3. Appeal is posted for Admission after issuing notice to respondents. 4. For the sake of convenience, the parties are referred to as per their rankings before the trial Courts. 5. Brief facts of the case are as under;-It is averred that one-Sri. Bacha Poojary is the husband of plaintiff No. 2, father of plaintiff No. 1, defendants 1 to 5 and maternal grandfather of plaintiffs 3 to 5. He owned and possessed suit 'A' immovable property on occupancy rights, half share in the schedule 'A' immovable property on occupancy right, half share in the schedule 'B' property on Mulgeni right and the 'C' schedule movables as his individual and self acquired property. Bacha Poojary died intestate on 10.08.1982 leaving behind plaintiffs 1 and 2 and defendants and the mother of plaintiffs 3 to 5 by name-Smt. Gange, as his only heirs and legal representatives. Hence, it is stated that each of plaintiffs 1 and 2, defendants and Smt. Gange have 1/8th share in the schedule 'A', 'B' and 'C' properties left behind by Bacha Poojary by inheritance. Smt. Gange died intestate leaving behind plaintiffs 3 to 5 as her only heirs and the husband of Smt. Gange had predeceased her. After the death of Bacha Poojary, plaintiffs 1 and 2, defendants, and Smt. Gange were in joint possession of schedule 'A', 'B' and 'C' properties. Smt. Gange died intestate leaving behind plaintiffs 3 to 5 as her only heirs and the husband of Smt. Gange had predeceased her. After the death of Bacha Poojary, plaintiffs 1 and 2, defendants, and Smt. Gange were in joint possession of schedule 'A', 'B' and 'C' properties. It is averred that after the death of Bacha Poojary, his widow and all the other children had executed a power of attorney in favor of defendant No. 5 empowering him to borrow the loans from the Primary Land Development Bank, Udupi and Syndicate Bank, Kuradi, for the purpose of raising loans for the construction of house with Mangalore tiled roofing, cattle shed of Mangalore tiled roofing, sinking a well and installing an irrigation pump set of 5 H.P. etc., and accordingly, defendant No. 5 raised loans and the said constructions, etc., were affected. It is stated that said loans were discharged from the income of schedule 'A' and 'B' lands alone. There are no debts due in respect of the estate of Bacha Poojary. It is further stated that defendant No. 5 was managing the assets left by his father-Bacha Poojary. Plaintiffs demanded partition and their share in the suit 'A' 'B' and 'C' schedule properties into 8 equal shares by metes and bounds, but in vain. Hence, plaintiffs sought the aid of the Court and filed the suit seeking the relief of partition and separate possession and for accounts. After the service of summons, defendants appeared through their respective counsels. Defendant No. 2 filed written statement supporting plaintiffs claim and the same has been adopted by defendants 1, 3 and 4. Defendant No. 5 filed separate written statement. He denied the plaint averments. He contended that he has spent huge money for management and improvements of suit schedule properties out of his own personal income. It was also contended that he was working as a Teacher since 1992 and earlier to that, he was doing his own business. He has discharged the loans to the tune of more than Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and the income from suit schedule properties was not at all sufficient for discharging said loans. He specifically contended that he made use of his personal income to discharge the loans. He has discharged the loans to the tune of more than Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and the income from suit schedule properties was not at all sufficient for discharging said loans. He specifically contended that he made use of his personal income to discharge the loans. It was also stated that his father never owned any movables as detailed in the plaint and the net income derived from the suit properties is also not correct. It has been further contended that suit 'A' schedule properties are not partible fully. The description is not given. Without boundaries the said properties cannot be identified. It has been specifically averred by defendant No. 5 that Bacha Poojary died testate as he has executed a Will on 01.02.1982 voluntarily out of his free will and choice bequeathing Items 1 to 5 of the suit 'A' schedule (S. Nos. I26-3 and I26-2 of Hanehalli Village, Udupi Taluk) in his favor. Under the said Will he had also bequeathed to an extent of 0-07 cents of S. No. I26-3 in favor of Chikkamma Devaru. Bacha Poojary did not get the Will registered during his life time. However, he got the said Will registered recently. Defendant No. 5 specifically pleaded that at the time of execution of the Will, Bacha Poojary was in sound disposing state of mind and body. It is the last Will and Testament of his father-Bacha Poojary. Hence, the properties covered under the Will cannot be partitioned and rest of the immovable properties only are liable to be partitioned. Hence, the suit in respect of Items 1 to 5 of the suit 'A' schedule is liable to be dismissed. Insofar as possession, defendant No. 5 stated that he is in possession of one room in the house. After the suit he has been staying in a rented house and plaintiffs 4 and 5 are also staying with him and plaintiffs 1 to 3 are staying in the remaining portion of the house. It is stated that he has kept his movables in the said one room in his possession. As per the terms of the Will, mutations have also been affected in the RTCs. Accordingly, he pleaded that lot of amounts are due to him. All the plaintiffs and defendants 1 to 4 are liable to reimburse the same to him before claiming partition. As per the terms of the Will, mutations have also been affected in the RTCs. Accordingly, he pleaded that lot of amounts are due to him. All the plaintiffs and defendants 1 to 4 are liable to reimburse the same to him before claiming partition. Accordingly, he prayed for dismissal of the suit. Based on the above pleadings, the trial Court has framed the following issues. "1. Whether the plaintiff proves that they have got 3/8 right of share in the suit properties? 2. Whether the 5th defendant proves that Will dated 01.02.1982 alleged to be executed by Bacha Poojary in respect of the item No. 1 to 5, in favour of him is true and genuine one? 3. Whether the plaintiffs are entitled to the relief sought for? 4. What order or decree?" To substantiate the claim, plaintiff got herself examined himself as PW-1 and one more witness as PW-2 and produced 7 documents which were marked as Exs. P1 to P7. On behalf of defendants, 4 witnesses were examined as DWs-1 to 4 and produced 7 documents which were marked as Exs. D1 to D7(a) to D(k). On the trial of the action, the suit came to be decreed. On appeal, the judgment and decree of the trial Court was confirmed. Hence, this regular second appeal under Section 100 of CPC is filed. 6. Sri. M.J. Alva, learned counsel appearing on behalf of Sri. Nagaraja Hegde for appellant submitted that judgment and decree of both the Courts below are unsustainable in law and hence, liable to be set aside. He submits that Courts below erred in decreeing the entire suit without upholding the claim advanced by defendant No. 5. Next, he contended that Courts below have failed to consider the fact that the Will dated 01.02.1982 is genuine and its execution has been proved as well as established by the attestor of said Will. A further submission was made that at the time of execution of the Will, the testator was in sound disposing state of mind and body. It is on his instructions the Will was prepared by DW-4. The attesting witness attested the said document. It has been contended that a perusal of the bequest shows that the deceased has distributed his properties to defendant No. 5. It is on his instructions the Will was prepared by DW-4. The attesting witness attested the said document. It has been contended that a perusal of the bequest shows that the deceased has distributed his properties to defendant No. 5. Having regard to the evidence on record and the relationship between the parties there is nothing un-natural in the bequest made and the evidence clearly establishes due execution of the Will, the testator-Bacha Poojary was in sound disposing state of mind and body. There are no suspicious circumstances. Learned counsel has submitted that the Courts below have failed to consider the decision in SRIDEVI AND OTHERS VS. JAYARAJA SHETTY AND OTHERS reported in (2005) 2 SCC 784 which is squarely applicable to the facts of the present case. Learned counsel further submitted that none of the parties have disputed the Will or its execution. In fact, even during recording evidence, witnesses for plaintiffs have also deposed that they are not aware of such Will or its production in the suit. Despite having knowledge about execution of Will, plaintiffs have not disputed the execution of the said Will in the entire proceedings. Therefore, he submitted that the execution of the Will is proved and there is no reason to doubt the genuineness of the Will. To substantiate the contentions, learned counsel for the appellant relied upon the following decisions:- 1) 2019 (5) SCJ 158-RAMATHAL v. MARUTHATHAL AND OTHERS. 2) 2008 AIR SCW 2417-KASHMIR SINGH v. HARNAM SINGH AND ANR. 3) (2005) 2 SCC 784 -SRIDEVI AND OTHERS v. JAYARAJA SHETTY AND OTHERS. 4) AIR 2019 SC 5682 -GANESAN (D) THROUGH LRS. v. KALANJIAM AND OTHERS. 5) 2020 (5) SCJ 267-DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. AND OTHERS. Lastly, he submitted that viewed from any angle, the judgment and finding of both the Courts below is arbitrary, illegal, erroneous, capricious, perverse and opposed to law and the same is liable to be set aside. Therefore, he made a submission that the appeal may be admitted by framing substantial question of law. 7. Sri. Vyasa Rao, submitted that the trial Court after considering the oral and documentary evidence on record has rightly decreed the suit. On appeal, the First Appellate Court has re-appreciated the entire evidence on record. Next, he submitted that Bacha Poojary was aged 81 years and he was not in a sound disposing state of mind and body. 7. Sri. Vyasa Rao, submitted that the trial Court after considering the oral and documentary evidence on record has rightly decreed the suit. On appeal, the First Appellate Court has re-appreciated the entire evidence on record. Next, he submitted that Bacha Poojary was aged 81 years and he was not in a sound disposing state of mind and body. It is also stated that testator-Bacha Poojary was not ill-disposed towards plaintiffs and defendant Nos. 1 to 4. He urged that Will is bristled with suspicious circumstances. A further submission was made that defendant No. 5-the propounder of the Will has not proved the due execution of the Will. Assuming for a while, Bacha Poojary executed the Will. His signature is not found on Page No. 2. It has been further contended that Champa Poojary has played a dominant part in the execution of the Will. He was very critical in his submission. Hence, he sought to urge that this second appeal does not involve any substantial questions of law and accordingly, submitted that the second appeal may be dismissed at the stage of admission itself. 8. Heard the submissions and contention urged on behalf respective parties and perused the records with care. The facts have been sufficiently stated. The suit is brought by plaintiffs for partition, separate possession and for accounts. One Bacha Poojary and Kaveri Poojarthi are husband and wife. They had 6 daughters and one son. The relationship between the parties is not in dispute. According to plaintiffs, Bacha Poojary died intestate. He was not in sound disposing state of mind and body. But according to defendant No. 5, Bacha Poojary died testate and he has executed Will on 01.02.1982 bequeathing Item Nos. 1 to 5 of the suit 'A' schedule properties in his favor and 0-07 cents of S. NO. I26-3 in favor of Chikkamma Devaru. In view of the aforesaid pleadings, the evidence and the submissions, it clearly emerges that the Will is set up by defendant No. 5 and he is the propounder of the Will. The trial Court framed Issue No. 2 and casted burden on him to prove the Will. In the background of these specific defenses taken, it is to be seen whether defendant No. 5 has proved the Will in accordance with law and has adduced acceptable evidence to dispel all clouds of suspicion surrounding thereof? The trial Court framed Issue No. 2 and casted burden on him to prove the Will. In the background of these specific defenses taken, it is to be seen whether defendant No. 5 has proved the Will in accordance with law and has adduced acceptable evidence to dispel all clouds of suspicion surrounding thereof? This Court propose and try to place succinctly, the background of the subject 'Will' tracing its history and the progressive journey it has made over the years. The origin of Wills in India is shrouded in obscurity and its investigation is rendered all the more difficult as there is no text at all dealing with the subject expressly. According to Sir Thomas Strange there is no term in Sanskrit or in the local language to express the idea of a Will. But there is a Sanskrit term (Marana Sasanam). "Will" as such does not find mention among the documents in use among Hindus in ancient times apart from the Sanskrit term; "Marana shasanam" which, however, does not express the exact idea of a "Will". The Hindu texts make no reference to "Wills" and this is natural since the normal state of Hindu society in ancient times was the joint family, and on the death of a member the property in which he had an interest passed by survivorship to the other members of the family. It was only after partition, and acquisition of self-acquired property, became common that the necessity to make Will arose and testamentary powers among Hindus have been based on long usage and judicial decision. On the other hand, Wills have been recognized under Muslim law from the earliest times. The origin of testamentary capacity in the case of a Muslim is quite different from that in the case of Hindus. "Wills" are declared to be lawful in the Quran and the traditions. Under Mohammedan law the subject of Will is dealt with in Hedaya and Fatwa Alamgiri which deal with Hanafi law and Sharaya-ul-Islam which deal with Shia law. The equivalent of Will in Mohammedan law is "Wasiyat". "Wills" are declared to be lawful in the Quran and the traditions. Under Mohammedan law the subject of Will is dealt with in Hedaya and Fatwa Alamgiri which deal with Hanafi law and Sharaya-ul-Islam which deal with Shia law. The equivalent of Will in Mohammedan law is "Wasiyat". The definition of the term "Will" has been given in Section 2 (h) of the Indian Succession Act, 1925 as follows: "(h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." In view of this definition the Will must contain the following three characteristics: (i) It should be "the legal declaration of the intention of the testator". (ii) The declaration must be "with respect to the property of the testator. (iii) The testator should "desire the intention to be carried into effect after his death." The intention of the testator should be meant to be carried out after his death. A Will is an instrument by which a person makes a disposition of his property to take effect after his death, and which is in its own nature ambulatory and revocable during life. "Will" as defined under Section 2 (h) of the Indian Succession Act 1925 "the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death." One characteristic of a Will as distinguished from other kinds of instruments disposing of property is its revocable nature. It is ambulatory until the death of the testator. It is dependent upon the testator's death for its vigour and effect. Till that event it is only an expression of intention to deal with the property in a particular manner. But the moment the testator dies it has the effect of vesting the property subject-matter of the Will in the devise. At that point of time, it would have the same effect as a transfer of possession by sale or mortgage. The process of parting with possession thus starts on the execution of the Will but matures only on the death of the testator. An instrument cannot take effect as a Will unless it has reference to the death of the person executing it. We must first have in mind the principles which govern the proving of a Will. The process of parting with possession thus starts on the execution of the Will but matures only on the death of the testator. An instrument cannot take effect as a Will unless it has reference to the death of the person executing it. We must first have in mind the principles which govern the proving of a Will. They are well settled by a string of decisions of the Hon'ble Apex Court [See (i) AIR 1959 SC 443 -H Venkatachala Iyengar vs. B.N. Thimmajamma and Others-(ii) 1962 AIR SC 567-Rani Purnima Debi & Another vs. Kumar Khagendra Narayan Deb & Another (iii): AIR 1964 SC 529 -Shashi Kumar Banerjee & Others Vs. Subhod Kumar Banarjee since deceased and after him his legal representatives and others (iv) AIR 1965 SC 354 -Ramachandra Rambux vs. Champabai & Others)]. It has been stated and reiterated in all these decisions that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the Will, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the context. In all such cases, the Court would naturally expect the propounder to remove completely such suspicious circumstances before the document is accepted as the last Will of the testator. There is one other aspect which needs to be emphasized. If the propounder himself takes part in the execution of a Will which confers on him substantial properties, it will be a greater suspicious circumstance which must be properly explained by the propounder by clear and satisfactory evidence. As regard the onus of proof in cases of Wills, the rules of law are quite clear. The onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The onus is in general discharged by the proof of capacity and the fact of execution. The onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The onus is in general discharged by the proof of capacity and the fact of execution. The onus probandi is on the propounder even if there is no allegation of fraud, and he must prove its execution and repel suspicious circumstances. A person who relies on the last Will of a testator has a heavy burden to discharge. It is for the propounder of the Will to establish the mental capacity of the testator, that he understood the disposition of the Will, and that it was duly executed by him as his Will. The propounder of the Will has to prove not only that it was duly executed and attested as required by the law, but also that it is genuine. If there are any suspicious features surrounding the Will, the burden lies on the propounder to remove the suspicion. Bearing these principles in mind, let me see whether defendant No. 5, the propounder of the Will has satisfied the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator and has adduced acceptable evidence to dispel all clouds of suspicion surrounding thereof? Let me turn to the evidence to find out whether Champa Poojary has satisfactorily established the reason given in the Will for disinheriting plaintiffs 1 and 2, the mother of plaintiffs 3 to 5-Smt. Gange and defendants 1 to 4. Plaintiff No. 1 was examined as PW-1 and deposed that suit schedule properties are to be divided into 8 equal shares and that she is entitled for 1/8th share. One-Vaibnajar Victor Jattanna was examined as PW-2 and his evidence corroborates the evidence of PW-1. It is relevant to note that PW-1 in her cross examination has denied the Will. She has deposed that Bacha Poojary was not in sound disposing state of mind and body. She has also deposed that plaintiffs have not allowed defendant No. 5 to cultivate the land since 1991. Defendant No. 5-Champa Poojary-examined as DW-2. He has deposed that his father died at the age 81 years. She has deposed that Bacha Poojary was not in sound disposing state of mind and body. She has also deposed that plaintiffs have not allowed defendant No. 5 to cultivate the land since 1991. Defendant No. 5-Champa Poojary-examined as DW-2. He has deposed that his father died at the age 81 years. He was looking after the welfare of his father during his old age and was also participating in the cultivation work. Therefore, his father has got love and affection with him. Hence, his father has executed Will in his favor. It would be relevant to note that from the material on record, one cannot go with an impression that the relationship between Bacha Poojary and his wife and his daughters was not cordial as suggested by Champa Poojary. It was, indeed, quite normal. Let me assume for a while that the relationship between Bacha Poojary and his wife and his daughters were not cordial would it be natural for Bacha Poojary to punish his wife and daughters by excluding them from inheritance? What is the injury caused to Bacha Poojary by his wife and daughters, so as to exclude them from inheritance? The Will is silent in all these matters. Hence, this Court cannot believe for a moment, that Bacha Poojary had voluntarily and deliberately chosen Champa Poojary to inherit the properties to the exclusion of all other kith and kin. When the Court turn to the evidence adduced by Champa Poojary as to the execution of the Will, this Court cannot help being left with more suspicion. Bacha Poojary at the fag end of his life was not keeping good health-a fact which is not much in dispute. He was admittedly suffering from asthma and age-related ailments. Defendant No. 5-Champa Poojary himself admitted that his father was suffering from asthma. In order to prove the Will, defendant No. 5 relied upon the oral evidence of one of the attesting witness Sri. Chandrashekara Shetty. S who was examined as DW-3 and the scribe Mohammed. B as DW-4. Both these witnesses have spoken about the execution of the Will. They have stated their acquaintance and the health condition of Bacha Poojary. They have stated that Bacha Poojary was aged 80 years and he was hale and healthy and was in a sound disposing state of mind and body. B as DW-4. Both these witnesses have spoken about the execution of the Will. They have stated their acquaintance and the health condition of Bacha Poojary. They have stated that Bacha Poojary was aged 80 years and he was hale and healthy and was in a sound disposing state of mind and body. It is stated that the Will was drafted by DW-4 and it was read over and Bacha Poojary after understanding the contents signed on all sheets. Thereafter, the attesting witnesses signed and DW-4 endorsed it. It is relevant to note that both these witnesses have spoken about the presence and active participation of defendant No. 5 in the preparation of the Will. DW-3 in his cross examination has stated that after drafting of the Will himself and Defendant No. 5 went to Brahmavara and got it typed on stamp paper and went to the house of Bacha Poojary and Bacha Poojary signed it. According to DW-3, the Will was executed by Bacha Poojary on a stamp paper. But as could be seen from the records, the Will at Ex D-7 is on a plain paper and the signature of Bacha Poojary is not found on second page. According to defendant No. 5, when the Will was executed by his father, he was not present, but DW-3 and 4 have stated about his presence and active participation in preparation of the alleged Will. The contents of the Will contain recitals to the effect that, the property bearing survey Numbers 126/3, 126/2 measuring 97 cents and 1.21 cents is bequeathed in favor of Champa Poojary-defendant No. 5 in the suit. It is needless to state that in determining the construction of a Will what must be looked into, is the intention of the testator. In all cases, the primary duty of a Court is to ascertain from the language of the testator what were his intentions, i.e., to construe the Will. It is true that in doing so, Court is entitled and bound to bear in mind other matters, than merely the words used. The Court must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in somewhat picturesque figure: The Court is entitled to put itself into the testator's armchair. The Court must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use words in a particular sense, and many other things which are often summed up in somewhat picturesque figure: The Court is entitled to put itself into the testator's armchair. Unlike other document, the Will speaks from the death of the testator. In case of proof of Wills, the Court will start on the same enquiry as in the case of the proof of documents. However, in case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the Court could declare a document styled as "Will" is proved. Plaintiffs have denied that Bacha Poojary was not in sound disposing state of mind and body. It is relevant to note that defendant No. 5 has filed written statement on 15.10.1998. What is more interesting to note that one of the daughters of Bacha Poojary, defendant No. 2 filed written statement on 30.8.1999. She has denied that the execution of the Will by her father-Bacha Poojary and the health condition. In paragraph 3 of the written statement filed by defendant No. 2, she has specifically averred that if the signature or thumb impression are found on the alleged Will, defendant No. 5 must have obtained the same without explaining the contents thereof to Bacha Poojary. She has also stated that Bacha Poojary was not in a disposing state of mind. She was examined as DW-1 and she has denied the suggestion that her father Bacha Poojary was in a disposing state of mind. Defendant No. 5 in his cross examination has admitted that his father Bacha Poojary was suffering from asthama. In the present case, Bacha Poojary alleged to have executed the Will on 01.02.1982 and he died in short period i.e., in the month of August 1982. DW-4 also deposed that Bacha Poojary died in the month of August 1982. According to plaintiffs, Bacha Poojary died intestate. He was not in sound disposing state of mind and body. The fact that Bacha Poojary died, within 8 months of executing the alleged Will, would in fact prove the plaint averments that Bacha Poojary was suffering from age related ailments and that he was not in a sound disposing state of mind and body. He was not in sound disposing state of mind and body. The fact that Bacha Poojary died, within 8 months of executing the alleged Will, would in fact prove the plaint averments that Bacha Poojary was suffering from age related ailments and that he was not in a sound disposing state of mind and body. When the Court turn to the evidence adduced by defendant No. 5 as to the execution of the Will, the Court cannot help being left with more suspicion. Bacha Poojary at the fag end of his life was not keeping good health a fact which is not in dispute. It is relevant to note that defendant No. 5 also admitted that his father was asthmatic patient. Therefore, perusal of the evidence on record would show that Bacha Poojary was not in a sound disposing state of mind and body. Insofar as execution of Will is concerned, it has been contended that Bacha Poojary has given instruction to Mohammed to write the Will. After giving oral instructions, the scribe appears to have typed the intention of the testator and consequently, prepared a draft of Will. Thereafter, the scribe read over the contents of the Will to Bacha Poojary. Subsequently, Sri. Chandrashekara Shetty. S (DW. 3) and Champa Poojary i.e., defendant No. 5 took the draft to Brahmavara for typing, and got it typed on a stamp paper. Thereafter, they went to the house of Bacha Poojary and Bacha Poojary signed it, on all pages. As already noted above, Ex. D7 is the Will. The attesting witnesses are Sri. Chandrashekara Shetty. S and Mohammed who is the scribe. According to DW-3, after drafting of the Will, the same was typed on the stamp paper. But Ex. D7-Will, is in white sheet paper containing three sheets. It is contended that Bacha Poojary accepted the contents and signed the Will on all the sheets and thereafter, the same was witnessed by two attesting witnesses. But as already noted above, the signature of Bacha Poojary has not signed in page No. 2. Defendant No. 2 has specifically denied the signature of Bacha Poojary on the alleged Will. Defendant No. 5 has not made any efforts to prove that the signatures found in Ex-D7 are the signature of Bacha Poojary. I have carefully perused the records. Ex. D7 is the alleged Will. Defendant No. 2 has specifically denied the signature of Bacha Poojary on the alleged Will. Defendant No. 5 has not made any efforts to prove that the signatures found in Ex-D7 are the signature of Bacha Poojary. I have carefully perused the records. Ex. D7 is the alleged Will. A bare perusal of the Will shows that it is on white sheet paper containing three sheets. It is not on a stamp paper as alleged by defendants. The contents of the Will are in Kannada. According to defendant No. 5, the testator was in sound state of mind and body and he has signed on all pages. Before affixing his signature, the scribe read the contents of the same. But the testator has not put his signature in page 2. There is yet another aspect which the propounder Champa Poojary has not satisfactorily explained as to the satisfaction of the Court. The propounder of the Will-Champa Poojary has played a dominant part in the execution of the Will. According to him, Bacha Poojary has executed the Will out of love and affection. DW-3 and 4 have spoken about the presence of the propounder of the Will-Champa Poojary. They have stated about the active participation of defendant No. 5 in the preparation of the Will. He has thus played a predominant part in the execution of the Will. He has also kept the Will sub-rosa. It is pertinent to note that the Will has not seen the light of the day for about 16 years after the death of Bacha Poojary -the testator. He has not even informed his mother about the execution of the Will in his favor till filing of the written statement. The Will in every aspect appears to be unnatural and suspicious. There is no clear and satisfactory evidence to explain the unfair, unnatural and improbable conduct of Bacha Poojary and Champa Poojary. Therefore, the Will is bristled with suspicious circumstances. I am of the view that the propounder of the Will has failed to remove the legitimate suspicion surrounding the Will. The findings recorded by both the Courts below are on proper appreciation of the material on record and there is no perversity, illegality or irregularity whatsoever in the findings. Insofar as schedule 'C' properties are concerned, defendant No. 5 has deposed that he was doing agricultural work and business. The findings recorded by both the Courts below are on proper appreciation of the material on record and there is no perversity, illegality or irregularity whatsoever in the findings. Insofar as schedule 'C' properties are concerned, defendant No. 5 has deposed that he was doing agricultural work and business. He has also deposed that he joined teaching service in the year 1992. His father Bacha Poojary has not acquired any movables properties as mentioned in schedule 'C'; and that he has purchased them from his own income. DW-2 has further deposed that he has improved the property by borrowing the loan. Learned trial Judge has taken into consideration of the evidence on record and found that defendant No. 5 has failed to establish that the movables mentioned in schedule 'C' are purchased by his personal income. In my opinion, defendant No. 5 failed to discharge the burden of proving the fact that he has purchased the movables mentioned in schedule 'C'. Learned counsel has relied upon the decision referred to supra. 1. 2019(5) SCJ 158-To contend that the High Court can consider the evidence and interfere with the question of fact. It is true that High Court can interfere with finding of fact recorded by the Courts below. But the rider is only when the same has been wrongly determined by the Courts below on which a substantial question of law arises and when appreciation of evidence suffered from material irregularities and when there is perversity in the findings of the Court which are not based on any material, Court is empowered to interfere on a question of fact as well. In the instant case, appellant has not made out any ground to say that the appreciation of evidence suffers from material irregularities and perversity in the findings of the Court below. Therefore, the decision is not applicable to the facts and circumstances of the present case. 2. 2008 AIR SCW 2417-To contend that High Court under Section 100 of CPC can interfere with concurrent findings of fact. In my opinion this decision/Judgment is not applicable to the facts and circumstances of the present case for the simple reason that there is nothing on record to show that both the Courts below have ignored the material evidence or acted on no evidence. 3. In my opinion this decision/Judgment is not applicable to the facts and circumstances of the present case for the simple reason that there is nothing on record to show that both the Courts below have ignored the material evidence or acted on no evidence. 3. (2005) 2 SCC 784 -To contend that in case the person contesting the Will alleges undue influence, fraud or coercion, onus will be on him to prove the same. This Court is unable to accept the said contention because it is for the propounder to prove the Will. Therefore, this case is not applicable to the facts and circumstances of the present case. 4. AIR 2019 SC 5682 -To contend that attestation of the Will is proper. This decision is not applicable to the facts and circumstances of the present case for the simple reason that in the present case the Will itself is not proved. 5. 2020(5) SCJ 267-To contend that there is due execution of the Will. This Court is of the opinion that even this decision/judgment is not applicable to the facts and circumstances of the present case since the propounder of the Will has not removed the suspicious circumstance and has thus failed to prove the Will. In the last resort, learned counsel for the appellant has relied upon the decision in AIR 2019 SC 5682 -GANESAN (D) THROUGH LRS. V. KALANJIAM AND OT HERS. Counsel vehemently urged that plaintiffs have not disputed the Will. But it necessary to note that even in the absence of any allegation as to the fraud, it is the duty of the propounder to prove the Will. In the instant case, the propounder of Will-Champa Poojary-defendant No. 5 has utterly failed to prove the execution of the Will. Therefore, the said decision is not applicable to the facts and circumstances of the case. Therefore, the argument fails. To conclude, this Court can say only this much that a Will is one of the solemn documents known to the law. By it, a dead man entrusts to the living the carrying out of his wishes, and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law. By it, a dead man entrusts to the living the carrying out of his wishes, and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law. As already observed above, the burden of proving due execution is upon the person propounding the Will, and he must satisfy the conscience of the Court that the instrument so propounding is the last Will of a free and capable testator. It is perhaps well to observe here that after 1976 amendment, the scope of Section 100 of CPC has been drastically curtailed and narrowed down. The High Court would have jurisdiction of interfering under Section 100 of CPC, only in a case where substantial question of law is involved and those questions have been clearly formulated in the Memorandum of appeal. But, the present second appeal does not involve any substantial questions of law. 9. In the result, I find no merit in this appeal and accordingly it is DISMISSED at the stage of admission.