JUDGMENT : V. SRISHANANDA, J. 1. Heard Sri. George Philip, learned counsel for the appellant and Sri. B.N. Prakash, learned counsel for the caveator/respondent No.1 and Sri. Fakirappa S. Shettar, learned counsel for respondents No.2 and 3. 2. Third defendant is the only appellant now, as defendants No.1 and 2 have transposed themselves as respondents in this appeal. 3. Third defendant is challenging the validity of the judgment and decree passed in O.S. No.17897/2005 on the file of Additional City Civil Judge, Mayohal, Bangalore. 4. Operative portion of the Judgment and Decree reads as under: The suit of the plaintiff decreed. The plaintiff is entitled for partition and separate possession of her ½ th share in the suit schedule property. Draw/partitioning decree accordingly. 5. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under; 5.1 Sri. Sebastian was owner of the suit property. Plaintiff and defendants are his children. He had a wife by name Jane Vardes. There was a will executed by Sri. Sebastian in the year 1990 and later on Sri. Sebastian and his wife together executed a Will on 03.04.1993 in respect of the suit property other movable properties of the couple. 5.2 Parents of the parties to the suit passed away and the suit for partition came to be filed by one of the daughters namely Mrs. Lucy, who is the first respondent in the appeal. 5.3 Three defendants are her siblings. Among them, defendants No.1 and 2 being her sisters and third defendant is the brother. 5.4 She contended that the Will said to have been executed by Sri. Sebastian and his wife is incorrect and sought for her share in the suit property. 5.5 Third defendant being the beneficiary under the will opposed the suit and so also the other defendants. 5.6 Learned trial judge raised following issues in the light of rival pleadings. 1. Whether the plaintiff proves that the suit schedule property is the joint property of the plaintiffs and defendants? 2. Whether the plaintiffs is entitled for any share in the suit schedule property. 3. What decree or order? 5.6 Learned trial judge raised following issues in the light of rival pleadings. 1. Whether the plaintiff proves that the suit schedule property is the joint property of the plaintiffs and defendants? 2. Whether the plaintiffs is entitled for any share in the suit schedule property. 3. What decree or order? 5.7 In order to prove the case of the plaintiff, plaintiff got examined herself as PW1 and placed on record eight documents which are exhibited and marked as Exhibits P1 to P8 comprising of legal notice, acknowledgment, reply to Exhibit P1, Emails sent to the alleged witnesses to the Will, letter, R.P.A.D. cover and yet another letter. 5.8 As against the evidence placed on record by the Plaintiff, first defendant was examined as DW1 who is now transposed herself as a respondent No.4 before this Court (As such, her evidence if any, would not be of much avail for the appellant to advance the case of the appellant in this appeal). 5.9 One of the witnesses to the Will by name Sri. Joseph F. Rosaria is examined as DW2. On behalf of the defendants, as many as seventeen documents were placed on record, which were exhibited and marked as Exhibits D1 to D17, comprising of Letter Receipt dated 03.06.2005, Letter dated 03.06.2005, First Will executed by Sebastian, Last and final will executed by Sebastian and his wife, original NSC Certificates, Letter confirming the signature on the Will, Letter of the plaintiff’s mother, who was aware of the Will, Statement of dowry, letter from defendant's father to defendant No.1, Exhibits P11 and 12 comprising of passports 12, General Power of Attorney, Memorandum of Understanding, Khatha of the Property, Tax paid receipt. 5.10 Learned Trial Judge after hearing the arguments of the parties, decreed the suit as referred to supra. 6. Being aggrieved by the same, as stated supra, the appeal came to be filed by all the defendants at the first instance and defendants No.1 and 2 during the pendency of the appeal transposed themselves as respondents. 7. The grounds urged in the appeal memorandum are as under: - That the learned City Civil Judge erred in decreeing the suit without considering the materials on record and having not applied his mind to the facts of the case. 7. The grounds urged in the appeal memorandum are as under: - That the learned City Civil Judge erred in decreeing the suit without considering the materials on record and having not applied his mind to the facts of the case. Appreciation of evidence is also not proper and hence the Judgment and Decree is liable to be set aside - The Court below has not noticed that the suit is not maintainable is barred under section 9 of CPC and should have rejected the plaint. - The Court below is not having any jurisdiction to decide the matter which relates to intestate succession, and falls squarely in the jurisdiction of the Special Forums enacted by the legislature, in view of the Provisions of the Indian Succession Act 1925. The order of the Special Forums entitling the respondent to intestate succession pertaining to the property of her deceased parents is to be produced in the Civil Court at the time of filing of partition suit, before the Court below. The said procedural defect was not noticed by the Court below - The Court below had not noticed that the suit for partition filed by the respondents is barred by the provisions of section 212 (1) of the Indian Succession Act 1925. - The Court below cannot decide properly the matter relating to, that Ex.D5, Will of the Testator is the last Will and testament of the testators propounded by the Appellants. It is to be decided only in Probate proceedings before the Special Forums for grant of Probate of the Will propounded, and the findings of the Probate Courts are final, is judgment in rem, while the judgment and decree of the Civil Court is not conclusive and is barred, lack of jurisdiction and suffers from material irregularity. - The Court below has accepted the version of the Plaintiff that her deceased parents died intestate, no cogent material is placed in this behalf by the respondents. The Plaintiff has to prove that her deceased parents died Intestate and that the proceeding are in accordance with the provisions of the Indian Succession Act 1925. - The Court below has accepted the version of the Plaintiff that her deceased parents died intestate, no cogent material is placed in this behalf by the respondents. The Plaintiff has to prove that her deceased parents died Intestate and that the proceeding are in accordance with the provisions of the Indian Succession Act 1925. - The Court below has erred in stating that the Will of the parents are to be determined in accordance with section 63 of the Indian Succession Act Whereas the provisions of 1925 read with section 68 of Evidence Act section 63 is not applicable to the rights of the parties to determine the due execution of the Will. The provisions of the Indian Succession Act 1925, Part IX is applicable to the parties which provides for determination of the Will under the provisions and procedures stated therein, in view of the fact that the deceased parents of the parties were Portuguese Christians hailing from the erstwhile Portuguese territory of Goa prior to its ceding to the Indian Union. - The Court below came to the conclusions based on Ex.P6, the attesting witnesses was not present in India on 3-4- 1993 and found that the signing of the Will as an attesting witnesses to the said Will by J.S.R.DD'Cunha in the presence of Testators Sebasttian Xavier Verdes and Jane Verdes does not arise Whereas the same attesting witness in Ex.P4 confirms that J.S.R.DD'Cunha did sign the will as attesting witnesses. In respect of Ex.P8 the court below came to the conclusion that J.F. Rozario the other attesting witnesses did not attest the will on 3-4- 1993. Whereas the court below had not noticed that in Ex.P8, the attesting witness J.F.Rozario has stated that since he had known Mr. Mrs. Verdes for the last 20 years he signed the Will in good faith without Mr. Mrs. Verdes signing the Will in his presence. Further the attesting witness J.F. Rozario was DW 2 has also admitted to his signature in Ex. P8. - The Court below has erred in coming to the conclusion that since both the attesting witnesses were not present at the same time and did not attest the Will in the presence of the testators both not signing and before both of them together at the same time on that date 3-4- 1993, the defendants have not proved due execution of the Will. - The Court below erred in misinterpreting and partly applying the application of section 63 to prove due execution of the Will. Whereas Section 63 (c) provides certain altematives and is sufficient in conformity to one of the alternatives is proved. - The Court below erred by not even applying properly the provisions of section 63 (c) to the facts of the case. As per Section 63 (c) of the Indian Succession Act 1925, The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the Will, in the presence and by direction of the testator or has received from the testator personal acknowledgement of his signature or mark, or of the signature of such other person and such of the witnesses shall sign the Will in the presence of the testator, but shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. - Thus Acknowledgement referred in the section is when the testator does not execute the Will in the presence of the attesting witness but the attesting witnesses put their signatures on the personal acknowledgement of the sufficient execution of the Will by the testator, that constitutes acknowledgement of Sec.71 of Evidence Act which says when the attesting witnesses denies or does not recollect the execution of the document its execution may be proved by other evidence Sec.69 of Evidence Act says the Will can be proved by proving the handwriting of both the testator and the witnesses It is the plaintiffs own admission that both the attesting witnesses are over 80 years old, and the Court below erred in concluding that mathematical precision is required for recollection of having attested the Will which is more than 20 years old by the attesting witnesses. The Court below erred in not coming to the conclusion that the attesting witnesses having admitted their signatures on the Will, the Will is deemed to have been executed. - The Court below committed material irregularity in exercise of its jurisdiction proceeded to dispose of the suit by recording finding only on one issue. It is established principle of law that the judgment shall be pronounced on all the issues. - The Court below committed material irregularity in exercise of its jurisdiction proceeded to dispose of the suit by recording finding only on one issue. It is established principle of law that the judgment shall be pronounced on all the issues. The matter is required to be remanded to the Court below, to take into consideration all the issues framed and render findings on all issues. - The Court below erred in not pronouncing the judgment on issues like - Whether the Will bears the signature or mark of the testators. The defendants have filed the passports of the deceased parents bearing the signatures of the testators in addition to other documents exhibiting signature of the testators in the Will. The signatures of the attesting witnesses J.F.Rozario has affirmed his signature on Ex.P8, the other attesting witnesses J.S.R.DD'Cunha has confirmed she signed the Will in Ex.P4. Therefore the Court below erred in not concluding after comparison of the signature that the signatures of the testators as well as the signatures of the attesting witnesses were genuine and not forged one as alleged by the respondents. In this behalf the court has not noticed that no evidence is produced by the plaintiff to substantiate her allegations - 15. The Court below erred in not pronouncing the judgment on the issue (2) Whether the natural heirs have been disinherited if so what is the reason, read with the issue (3) Whether any suspicious circumstances exist surrounding the execution of the Will? On plain reading of the Will its states that the Appellant No.1 was bequeathed the main house of the suit property for her own use until her life time after which it would go to the grandsons of the testators ie the two sons of the Appellant No.3 to be owned by them absolutely. Thus the grandsons were to be vested with the main house absolutely being the ultimate beneficiaries under the Will. The suit is bad for non joinder of the ultimate beneficiaries under the Will. The Appellant No. 1 was only entitled to a life interest in the immovable property. The Intentions of the testator is clear to provide for their daughter being a single lady who was divorced without issues. The suit is bad for non joinder of the ultimate beneficiaries under the Will. The Appellant No. 1 was only entitled to a life interest in the immovable property. The Intentions of the testator is clear to provide for their daughter being a single lady who was divorced without issues. In respect of the Appellant No.2, was bequeathed the cottage with restrictions that the she should preserve the said property for herself and her child, and in event she likes to dispose of the property, the first option was to be given to the Appellant No.3. In respect of the Appellant No.3, permission only was granted to put up a construction on the suit property, for his own use with the restriction that selling to outsiders was not permitted. Thus only an intangible asset was bequeathed to the appellant No.3. Whereas the respondent claimed that she was left out of the Will whereas in fact in the Will the mothers gold ornaments belonging to her after her death was bequeathed to be shared amongst her daughters and in respect of the parents savings was to be shared amongst the son and daughters for which the Executor after the death of the testators distributed the movable assets among the beneficiaries and receipt dated 3-6-2005 executed by the respondent having received a share of the movables came into existence which the respondent has admitted having executed. In this behalf the Court below erred by not coming to the conclusion that the plaintiff had taken her legacy under the Will and is so estopped from denying its validity. - In fact the appellant No.3 being the eldest and only son received the least amount of the moveable property compared to the others and by receiving an intangible right in the immovable property Therefore the court below erred in not holding that the allegation of the respondents to be untrue wherein she has raised suspicious circumstances as to distribution of the bequest. - The issue (4) whether the testator was in a sound state of mind at the time of execution of the will? - The issue (4) whether the testator was in a sound state of mind at the time of execution of the will? To this the respondent made several allegations regarding the health of the father after his accident in 1995 and his ill-health thereafter until his death in 2000, with the contention that the Will could not have been made by her parents and the Will was forged and fabricated Whereas the Will bears the date 3-4-1993 when it was executed on 3-4- 1993, and the period alleged when her father was not in good health is after 1995 is not relevant to the period 1993 when he executed the will. In fact Ex.P4 states that to the question, "did my father sign the Will in your presence", the answer is "yes". Further to the question, "Was the will signed after my fathers accident in 1995, the answer was "it was signed before your fathers accident" Therefore the allegation of the respondent of the mental and health of her father after 1995 is irrelevant and contrary to facts and has no bearing on the health and state of mind of her father on 3-4-1993 when he executed the Will. Therefore the court below erred in not concluding that the testator was in a sound and disposing state of mind on 3-4-1993, the date mentioned in the will. - The court erred in not coming to the conclusion that where the testators described the document dated 3-4- 1993 as their last Will and testament which is intended to be only a codicil to an earlier Will that had been executed by them on 28-3-1990 the court ought to have drawn an inference to the fact that the earlier Will dated 28-3-1990 is the last Will and testament to be read along with the codicil dated 28-3-1993 of the testators, in which the testators carried out some alterations without materially affecting the last Will. The joint Will and Codicil was executed by the testators themselves. The first testator died on 10-06-2000 The second testator the wife of the first was the survivor and became the trustee of her part of the Will. She died on 29-09-2003. Although signatures of the attesting witnesses Mr.E.V.J.. D'Cuhna and the other J.F.Rozario appears on the last Will and testament dated 28-3-1990, the attesting Witness Mr.EVJ D'D'Cunha died in January 1993 according to Ex.P4&5 Mrs.J.S.R.D'D'Cunha, and Mr. She died on 29-09-2003. Although signatures of the attesting witnesses Mr.E.V.J.. D'Cuhna and the other J.F.Rozario appears on the last Will and testament dated 28-3-1990, the attesting Witness Mr.EVJ D'D'Cunha died in January 1993 according to Ex.P4&5 Mrs.J.S.R.D'D'Cunha, and Mr. Joseph. F. Rozario were the attesting witnesses in the Codicil dated 3-4-1993, the Court below erred in not coming to the conclusion that the attestation of the joint Will by the attesting witnesses was surplusage, since the testators themselves had executed the joint will. - Accordingly the Executor appointed under the Will after the death of the testators distributed the movable assets among the beneficiaries and receipt dated 3-6-2005 of the respondent having received a share of the movables came into existence the respondent has admitted having executed, The Court below erred in not coming to the conclusion that the Executor carried out the intentions of the testators and accordingly the distribution of which is governed by section 5 (2) of the Indian Succession Act 1925, which is according to the domicile of birth of the testators in respect of movable property which is governed by the Portuguese Civil Procedure Code. In respect of the Will which refers to immovable property left behind by the testators situated in Bangalore Karnataka, is to be dealt with according to sec.5 (1) of the Indian Succession Act which is according to immovable property of the testators where situated and is governed by the Indian Succession Act. - Therefore the Will is to be probated according to Part IX of the Indian Succession Act 1925 in respect of the part in the Will which refers to immovable property to which the Court of Probate has exclusive jurisdiction is vested in the special forum created under the Act, which is a special law, for grant of Probate and matters connected therewith Obviously whether the parents died intestate is also the exclusive jurisdiction of these Special Courts, and the Civil Court on the original side has no jurisdiction to adjudicate upon proof or validity of the Will propounded by the Executor is duly proved in a suit instituted by any party or take cognizance of such a suit in which the plaintiff raises such an issue or of intestate succession. - The learned judge at Court below failed to appreciate the evidence in the proper manner and has adhered to surmises which have led to the miscarriage of justice. 8. Sri George Philip, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, contented that on behalf of the third defendant, power of attorney holder namely first defendant was examined as DW1 who has not properly conducted the case on behalf of the third defendant resulting in miscarriage of justice besides detrimental to the interest of the third defendant and his children who are also beneficiary under the Will marked at Exhibit D5. 9. He would further contend that one of the attesting witnesses namely Joseph F. Rosaria is examined as DW2, who has specifically stated that the Will was duly executed in his presence and second witness to the Will namely Mrs. J.S.R. D'D'Cunha was present and she has also signed the Will in his presence and in the presence of the testators. 10. He would further contend that the learned Trial Judge has not considered the material evidence on record in proper perspective and on surmises and conjectures, decreed the suit of the plaintiff, ignoring the bequeth made under the Will at Exhibit D5, resulting in miscarriage of justice and sought for allowing the appeal. 11. Per contra, Sri. Prakash, learned counsel for the first respondent plaintiff would support the impugned judgment by contending that the email sent by the plaintiff to both the attesting witnesses are marked as Exhibit P6 and Exhibit P8. DW2 admits the contents of Exhibit P8. Therefore, when one of the attesting witnesses namely the Mrs. J.S.R. D'Cunha was not in India and visited India only in the month of June, 1993, could not have subscribed the her signature to Exhibit D5 at the time of execution which exposes the hollowness in the genuineness of the Will marked at Exhibit D5 which has been rightly appreciated by the learned Trial Judge while ignoring the Will and decreeing the suit granting 1/4 th share to the plaintiff as per the Indian Succession Act and thus sought for dismissal of the appeal. 12. Sri. Nagaraj appearing for Sri. Shankar Reddy for respondents No.4 and 5 supports the impugned judgment who had initially opposed the impugned judgment as appellants No.1 and 2. 13. Sri. 12. Sri. Nagaraj appearing for Sri. Shankar Reddy for respondents No.4 and 5 supports the impugned judgment who had initially opposed the impugned judgment as appellants No.1 and 2. 13. Sri. Fakirappa S. Shettar, learned counsel appears for respondents No.2 and 3 would support the appeal grounds, they being the children of the third appellant. 14. Having heard the arguments of both sides, this Court perused the material on record meticulously. 15. On such perusal of the material on record, following points would arise for consideration: (i) Whether the third appellant who was the third defendant before the Trial Court could make out a case that Exhibit D5 is denied and thereby the decreeing of the suit is bad in law? (ii) Whether the interim judgment is suffering from legal infirmity and perversity and thus calls for interference? (iii) What order? 16. In the case on hand, there is no dispute as to the relationship between the parties. Likewise, earlier Will having been executed by Sri. Sebastian, marked vide Exhibit D4 is not in dispute. 17. However, Exhibit D5 being the document that is now propounded by the third appellant supported by respondents No.2 and 3 is to be considered by this Court while appreciating the point No.1 supra. 18. Admittedly, Exhibit D5 is executed by Sri Sebastian and his wife. In other words, in Exhibit D5, there are two testators who are the husband and wife. 19. Exhibit D10 is the letter that has been written by Sri. Sebastian addressing to first defendant about the Will-Exhibit D5. Signature of Sri. Sebastian and his wife on the Will is not in dispute. However plaintiff contended that Will was not properly executed. Thus, it is the first defendant who was supposed to prove the Exhibit D5 being the propounder of the Will and also as a Power of Attorney holder of third defendant. 20. To prove the Ex.P.5, Sri. Joseph F. Rosaria is examined as DW2. In his cross-examination, categorically admits correspondence through Email marked at Exhibit P8 which would read as under: Ex.P8 "Mrs Lucy Vaz (daughter of Mr.S.N.Verdes) came to me with a copy of the will of Mrs.S.X. Verdes, No. 1. 20. To prove the Ex.P.5, Sri. Joseph F. Rosaria is examined as DW2. In his cross-examination, categorically admits correspondence through Email marked at Exhibit P8 which would read as under: Ex.P8 "Mrs Lucy Vaz (daughter of Mr.S.N.Verdes) came to me with a copy of the will of Mrs.S.X. Verdes, No. 1. Kemp Road, Fraser Town Bangalore 56 0005 and said she had doubts about the genuineness of the copy of the will dated 3d April 1993 (both regarding the content and the date of signing this will) as she was not shown the original will, by her elder sister Bernadette Verdes. Since I was one of the witnesses (as per the copy of the will given to her). She desired some further details to which I give my answer:- 1. Did Mr.S.X.Verdes contact you to come and sign the will? of not who contacted you? No either Mrs.Verdes or one of the daughters by pone. 2. To the best of your knowledge, do you feel you signed this will on 3rd of April 1993? No. 3. Were my sisters, Bernadette Verdes and my younger sister Grace Verdes present there when you signed the will? I don't remember exactly but one of the sisters was present together with the mother. 4. Did my father S.X.Verdes and mother Jane Verdes sign the will in your presence? No 5. If my father did not sign the will in your presence, what reasons were given to you by my sisters for my father not signing the will in your presence. Not well. 6. Was the second witnesses Mr.J.S.R.D'cunha present when you signed the will? Did she sign the will in your presence No No I also state that, since I had known Mr and Mrs. S.X.Verdes for the last 20 years, I believed what was told to me his daughters who were present and I signed a will in all good faith, without Mr and Mrs. Verdes signing this will in my presence and without the other witness being present. 21. Admittedly, Exhibit P8 is the Email that was sent by DW2 to plaintiff at an undisputed point of time. In the said document, DW2 clearly admits that he has not signed the Will in the presence of the testators. 22. Verdes signing this will in my presence and without the other witness being present. 21. Admittedly, Exhibit P8 is the Email that was sent by DW2 to plaintiff at an undisputed point of time. In the said document, DW2 clearly admits that he has not signed the Will in the presence of the testators. 22. In Exhibit P6 again on Email correspondence, the second witness to the Will would clearly state that she was not in India as on the date of execution of the Will being 03.04.1993 and she having lost her husband came alone to India in June 1993. As such, the statement made on oath by DW2 that second witness to the Will was present when he signed Exhibit D5 cannot be countenanced in law. 23. To substantiate the said aspect of the matter, material evidence available on record is the passport attached to Exhibit P6, which would clearly make out that the visit of second witness to the Will, Mrs. J.S.R. D'Cunha was only in the month of June 1993 and therefore, she could not have been present as on the date of execution of the Will. 24. DW2 having admitted in Exhibit P8 that she has not signed the Will when testators executed the document, later on turning around and sworn to a false fact that he has signed Exhibit D5 when the testators signed and second witness namely J.S.R. D'Cunha was also present and DW2 has also signed the Will. Therefore said testimony of DW2 appears to be utter falsehood and such a deposition of DW2 only with an intention to help the defendant. 25. At any rate, having admitted the contents of Exhibit P8, the evidentiary or the probative value of the testimony of DW2 cannot be believed in holding that Exhibit D5 will get proved. 26. If not in so many happy words, learned Trial Judge has come to the same conclusion that Exhibit D5 is not proved. 27. Further, in so far as proof of Will is concerned, the learned Trial Judge has adopted the principles of 'panchapadi' as is enunciated by the Hon'ble Apex Court in the case of Venkatachala Iyengar vs. Thimmajamma reported in AIR 1959 SC 443 . 28. 27. Further, in so far as proof of Will is concerned, the learned Trial Judge has adopted the principles of 'panchapadi' as is enunciated by the Hon'ble Apex Court in the case of Venkatachala Iyengar vs. Thimmajamma reported in AIR 1959 SC 443 . 28. In the case on hand, execution of the Will is to be established by the defendant by placing such proof as is necessary to see that the Will is to be held genuine and valid and is not surrounded by suspicious circumstances. 29. In that regard, except the statement of oath by DW1, who is now not supporting the appellants, there is no other material proof inasmuch as the evidence DW2 cannot be believed, as he is an utter liar. More so having admitted the contents of Exhibit P8 and deposing contrary to the contents of Exhibit P8 on oath. 30. The other circumstance which the counsel for appellants would try to impress upon this Court in regard to proof of Will is that letter written by Sri. Sebastian in favour of first defendant marked at Exhibit D10 and also receipts for having shared the movable properties as per the Will dated 03.04.1993. Said the receipt is marked as Exhibit D2 which is dated 03.06.2005 and therefore, Will is proved and acted upon. 31. Mere taking of the movable properties under Exhibit D2 pursuant to the wishes of the Parents, which may be the contents of Exhibit D5 would not ipso facto prove the Will especially when the validity of Ex.P.5 is seriously disputed is denied. 32. Mere actions of the parties would not be sufficient enough to replace the required proof to prove a Will under the Provisions of Indian Succession Act. 33. Thus, from the above discussion, when there is overwhelming evidence placed on record to demolish the proof of the Will, the learned Trial Judge ignoring the Will and granting the 1/4 th share to the parties in the suit as per the Indian Succession Act is just and proper. As such, points No.1 and 2 are answered in the 'Negative'. 34. Regarding point No.3 - In view of the foregoing discussion, following Order: ORDER Appeal is meritless and hereby dismissed .