The State Of Karnataka vs. Sri K B Lokesh

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RFA No. 117 of 2015


IN THE HIGH COURT OF KARNATAKA AT BENGALURU



TH
DATED THIS THE 7 DAY OF JUNE, 2024
R

BEFORE

THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR


REGULAR FIRST APPEAL NO.117 OF 2015 (PAR)

BETWEEN:

1. SMT. CHANDRA PRABHA
D/O LATE M KRISHNAPPA @ KRISHNAMURTHY
W/O P. VARADARAJAN
AGED ABOUT 65 YEARS
RESIDING AT NO. 5D, THAI VEEDU
CHOODAMANI STREET,
DHARMAPURI, DHARMAPURI DISTRICT,
TAMILNADU – 636 702






2. SMT. S. PUSHPAVATHI
D/O LATE M. KRISHNAPPA,
W/O SUDARA RAJAN,
AGED 55 YEARS,
PRESENTLY RESIDING AT NO. 156/3M,
HULLIMAVU MAIN ROAD,
BANNERGHATTA ROAD,
BENGALURU- 560 076.

3. SMT. K. KOKILA,
D/O LATE M. KRISHNAPPA,
W/O R. KARUNANEEDHI,
AGED 52 YEARS,
ND
RESIDING NO. 8/44, 2 STREET,
WEAVERS COLONY, DHARMAPURI TOWN,
TAMILNADU STATE – 636 702.

4. SMT. ARUNAKUMARI
D/O LATE M. KRISHNAPPA,
W/O SRINIVASAN. S,
AGED 48 YEARS,




Digitally signed by
SUMITHRA R
Location: HIGH
COURT OF
KARNATAKA


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ND
RESIDING AT NO. 90/12, 2 CROSS,
NANJAPPA LAYOUT, ADUGODI,
BENGALURU – 560 030.
(VIDE ORDER DATED 15.09.2016 RESPONDENTS NO.7 TO 9
HAVE BEEN TRANSPOSED AS APPELLANTS NO.2 TO 4

…APPELLANTS
(BY SRI. GANGADHARAPPA A V., ADVOCATE
V/O DATED 15.09.2015 R7 TO R9 ARE
TRANSPOSED AS A2 – A4)

AND:
1. SMT. K. SAROJAMMAL
W/O LATE M.KRISHNAPPA @ KRISHNAMURTHY,
AGED ABOUT 85 YEARS
RESIDING AT NO. 5D, THAI VEEDU
CHOODAMANI STREET, DHARMAPURI
DHARMAPURI DISTRICT
TAMILNADU – 636 702.

2. SMT. KANAKA
W/O LATE MUNIRAJU,
AGED ABOUT 55 YEARS
RESIDING AT NO. 59/29
ND
2 CROSS, KALASIPALYA,
NEW EXTENSION,
BENGALURU – 560 002.





3.
MUNIRATHNAM K @ PURUSHOTHAM
S/O LATE M KRISHNAPPA
SINCE DEAD BY LRS

SMT KALA @ KALAVATHI
W/O LATE MUNIRATHNAM K @ PURUSHOTHAM
AGED ABOUT 51 YEARS,

4. SMT. POORNIMA
D/O LATE MUNIRATHNAM .K @ PURUSHOTHAM,
AGED ABOUT 33 YEARS

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5. SMT. SANGEETHA
D/O LATE MUNIRATHNAM K @ PURUSHOTHAM
AGED ABOUT 29 YEARS
6. SAVITHA
D/O LATE MUNIRATHNAM K @ PURUSHOTHAM
AGED ABOUT 23 YEARS

RESPONDENTS 3 TO 6 ARE RESIDING AT
NO.59/29,
ND
2 CROSS, KALASIPALYA,
NEW EXTENSION,
BENGALURU – 560 002

(V/O DATED 15.09.2016, R7 TO 9 HAVE BEEN
TRANSPOSED AS APPELLANT NO.2 TO 4)

10. MUNIGOVINDARAJU
S/O LATE M KRISHNAPPA,
AGED ABOUT 60 YEARS
RESIDING AT NO. 6,
RAMALINGA CHOWDESHWARI NILAYA,
SAMPANGIRAMANAGARA
BENGALURU – 560 027.
11. MUNIGOPALA
S/O LATE M. KRISHNAPPA
AGED ABOUT 55 YEARS
RESIDING AT NO. 59/29,
ND
2 CROSS, KALASIPALYA
NEW EXTENSION,
BENGALURU – 560 002

12. SMT. MUNIRADHA @ RADHA
W/O GOVINDAN,
D/O M KRISHNAPPA
AGED ABOUT 52 YEARS
RESIDING AT NO. 199,
GANDHI ROAD, ARAKONAM
TAMILNADU – 631 001


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13. SMT. G. LALITHA
W/O GUNASHEKHARAN
D/O M KRISHNAPPA
AGED BOUT 49 YEARS
RESIDING AT NO. 14,
MARKET STREET, AMMAPETTAI,
BEHIND POLICE STATION
SALEM TOWN, TAMILNADU STATE – 636 001

14 SMT. SUPRIYA
D/O LATE MUNIRAJU,
AGED ABOUT 40 YEARS,

15 SMT. SUNANDA
D/O LATE MUNIRAJU
AGED ABOUT 35 YEARS,

16 MISS POOJA
D/O LATE MUNIRAJU,
AGED ABOUT 28 YEARS,

RESPONDENTS NO. 14 TO 16 ARE CARE OF
SMT. KANAKA W/O LATE MUNIRAJU,
AGED ABOUT 60 YEARS,
RESIDING AT NO. 59/29,
ND
2 CROSS, KALASIPALYA,
NEW EXTENSION,
BENGALURU – 560002.
…RESPONDENTS
(BY SRI. A SUBRAMANYA PRASAD, ADVOCATE FOR R3 TO R6
AND R11,
SRI. CHITHAPPA ADVOCATE FOR R10
SRI. SHANMUKHAPPA ADVOCATE FOR R2
R1, R12, R13 ARE SERVED BUT UNREPRESENTED
(R7 TO R9 ARE TRANSPOSED ARE APPELLANTS)
V/O DATED 23.11.2023 R2 TO R6 ARE THE LRS OF
DECEASED R1
V/O DATED 03.11.2022 PROPOSED IN PLEADING R16 IS
HELD SUFFICIENT
R 14 AND R 15 ARE SERVED AND UNREPRESENTED)


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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.09.2014 PASSED IN
O.S.NO.3086/2005 ON THE FILE OF THE XVIII ADDL. CITY
CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR
PARTITION.

THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT
The appeal is filed by the plaintiff challenging the
judgment and decree dated 26.09.2014 passed by XVIII
Addl. City Civil Judge, Bengaluru City, in
O.S.No.3086/2005 thereby suit filed by the plaintiff for
declaration, partition and mesne profits is dismissed.

2. Ranking of the parties are referred to as per
their rankings before the trial court.

3. Brief facts of the case are as follows:
Plaint:
It is stated by the plaintiff that defendant No.1 –
K.Sarojammal and defendant No.7 - K.Kaveri @
Kannambal are the wives of late M.Krishnappa @
M.Krishnamurthy. The defendant Nos.2 and 3 are the

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sons and defendant Nos.4 to 6 are the daughters of
M.Krishnappa through his first wife - K. Sarojammal.
Defendant Nos.8 and 9 are the sons and defendant Nos.10
and 11 are the daughters of M.Krishnappa through his
second wife - Kaveri @ Kannambal. It is further case of
the plaintiff that said M.Krishnappa had executed a Will
dated 06.03.1996 and that is revoked subsequently by
second Will dated 16.02.2001. In the first Will dated
06.03.1996 only the sons were bequeathed properties and
after advent of amendment of the Hindu Succession Act,
1956, he has executed a second Will dated 16.02.2001 in
favour of the sons and daughters of two wives. It is
further contention of the plaintiff that he has cancelled the
second Will dated 16.02.2001 and executed third Will
dated 15.06.2001 bequeathing properties only to sons.
Therefore, it is the case of the plaintiff that the third Will
executed is contrary to the intention of the testator.
Therefore, the third Will is a created one and prepared by
defendant No.8, who is an Advocate and he has played a
dominant role in preparing the same. It does not have

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proof of intention of the testator M.Krishnappa but he
managed to get execution of the disputed Will dated
15.06.2001 by duping the legitimate rights of daughters.
Hence, the plaintiff has filed the suit for declaration to
declare that Will dated 15.06.2001 is not binding on the
th
plaintiff and claimed for 1/7 share in the suit schedule
properties and to declare that the plaintiff is entitled to
mesne profits.
Written Statement:

4. The defendant No.1 filed written statement
denying all the averments made in the plaint except
admitting the relationship. The defendant No.1 has stated
in her written statement about the execution of three Wills
by M.Krishnappa. Apart from the same, she has taken the
contention that plaintiff has filed a false and frivolous suit
and she has no share in the suit schedule properties.
Therefore, she prays to dismiss the suit.

4.1 The defendant No.2, who is the wife of second
son Muniraju had filed written statement denying all the

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averments made in the plaint by the plaintiff and she also
prays to dismiss the suit.

4.2 The defendant No.4 filed written statement
admitting the plaint averments and prayed to decree the
th
suit by granting 1/7 share in the suit schedule properties.

4.3 The defendant Nos.5 and 6 have adopted the
written statement filed by the defendant No.4.

4.4 The defendant Nos.3, 7 and 9 have filed the
written statement in the line of defendant No.1 and prays
to dismiss the suit.

4.5 The defendant No.8 filed the written statement
denying all the plaint averments and pleaded that Late
M.Krishnappa had executed three Wills and the last Will is
dated 15.06.2001, which was executed by M.Krishnappa
and it is not having any suspicious circumstances. Hence,
prays to dismiss the suit. He has further stated that by
executing a third Will dated 15.06.2001, M.Krishnappa had
bequeathed the suit properties in favour of his sons and

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directed the beneficiary of the said Will to pay a sum of
Rs.5,000/- p.a. for a period of 5 years to daughters.
Therefore, the daughters are also beneficiary under the
said Will including the plaintiff. Therefore, the third Will
executed by the said M.Krishnappa is genuine and the
valid one. Hence, he prays to dismiss the suit.

4.6 The defendant No.10 filed the written statement
denying the plaint averments of the plaintiff and
contended that herself, defendant Nos.1, 2, 7 and 9,
widow and children of Muniraju are residing in the said suit
property. After the death of M.Krishnappa, all the
beneficiaries have occupied their portions of suit properties
by virtue of Will executed by M.Krishnappa. Therefore,
she prays to dismiss the suit.

5. Based on the pleadings, the trial court has
framed the following issues:
“1. Whether the plaintiff proves that the
WILL dated; 15.6.2001 is not binding on
her?

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2. Whether the Valuation of the suit is
proper and court fee paid is correct?
th
3. Whether the plaintiff is entitled for 1/7
share in the suit schedule property?
4. To what decree or order?”


6. The plaintiff got examined herself as PW.1 and
two other witnesses as PWs.2 and 3 and got marked
documents as Exs.P-1 to P-4. Defendant No.9 got
examined himself as DW.1, defendant No.3(a) as DW.2
and defendant No.2 as DW.3 and got marked documents
Exs.D-1 to D-25.
Trail Court Findings:

7. The trial Court, after considering the evidence
on record and appreciating the same, has dismissed the
suit filed by the plaintiff. The trial Court has assigned
reasons that the plaintiff had admitted the execution of
Will dated 15.06.2001. Further, the trial Court has
observed and given finding that the plaintiff has failed to
prove the Will dated 15.06.2001 was made by his father
M.Krishnappa at the instance of the defendant No.8 and

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testator had no good health both physically and mentally
and conscious at the time of execution of Will. Further,
the trial Court held that production of Ex.P-3, certified
copy of the Will dated 15.06.2001 itself is sufficient to
ensure that the plaintiff and other defendants have
knowledge about the execution of same. Therefore
execution of Will dated 15.06.2001 is proved. Therefore, it
is further stated that the Will dated 15.06.2001 is acted
upon and was within the knowledge of the plaintiff.
Grounds raised in the Appeal:

8. Being aggrieved by the dismissal of the suit, the
plaintiff has preferred the present appeal raising grounds
that the burden is on the defendants, who are the
propounders of the Will to prove the Will but not on the
plaintiff. Therefore, shifting the burden on the plaintiff to
prove the Will is not correct. Further raised the ground
that the trial Court has not appreciated the evidence on
record correctly and has not considered the pleadings
made by the plaintiff and has not applied law on proof of
Will. Therefore, it results into passing of the erroneous

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judgment. Further raised the ground that just because of
the production of the Certified Copy of the Will dated
15.06.2001 as per Ex.P-3, the reasoning of the trial Court
is not correct. Therefore, the trial court has committed an
error only relying on the certified copy of the Will dated
15.06.2001. Further raised the ground that the defendant
No.8 has played a dominant role in getting execution of
Will dated 15.06.2001 and the same is lost sight by the
trial Court and the true intention of the M.Krishnappa is to
give equal share to all the coparceners, but later on, under
the guise of execution of third Will dated 15.06.2001
bequeathed the property only in favour of sons, which is
contrary to the intention of M.Krishnappa. Therefore, when
this being the fact, the trial Court has erroneously held
that the plaintiff has admitted the Will and dismissed the
suit. Therefore, the judgment and decree passed by the
trial Court is not correct. Further, it is submitted that the
burden casts on the propounders of the Will, who are the
defendants herein to prove the same by examining
attesting witnesses as per the legal requirement of Section

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63 of the Indian Succession Act, 1956 and Section 68 of
the Indian Evidence Act, 1872, but the defendants have
not at all examined the attesting witnesses. Thus, the Will
is not proved by the defendants. When the same has not
been done, shifting the burden on the plaintiff to prove the
Will is not correct. Further the trial court has unnecessarily
relied on the Exs.D-1 to D-6 which are irrelevant to the
facts in suit, but the trial Court has much harped upon
these documents resulting into perverse approach of the
trial Court. On these grounds, the plaintiff has filed the
present appeal.
Submissions of counsel for Appellant- plaintiffs.

9. Learned counsel for the appellant argued that it
is the burden casts on the defendants, who are
propounders have to prove the Will in terms of the Section
63 of the Indian Succession Act, 1956 and Section 68 of
the Indian Evidence Act, 1872, but none of the attesting
witnesses have been examined by the propounders of the
Will. Therefore, the Will is not proved as per law. But on
the contrary, the trial court has erroneously held that the

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plaintiff has admitted the Will, but the plaintiff in her
pleadings has unequivocally pleaded that the execution of
the Will dated 15.06.2001 is contrary to the intention of
the testator M.Krishnappa. When this being the pleadings
of the plaintiff in questioning the Will, the trial Court has
erroneously held that the plaintiff has admitted the Will.
Therefore, he prays to set aside the judgment and decree
passed by the trial Court.

9.1 It is further argued that the reference to the
observation and finding made by the trial Court in the
judgment are perverse to the pleadings and evidence on
record. Further submitted that the defendant No.8 being a
legal practitioner has played dominant role in getting the
execution of Will dated 15.06.2001 and there is suspicious
circumstance about the Will dated 15.06.2001 and same
has not been removed by the propounders of the Will.
Thus, the Will dated 15.06.2001 is not proved by the
defendants, but on the contrary the trial Court has put the
burden on the plaintiff to prove the Will is not executed,

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which is not correct. Further the defendants have not
produced the original Will though they are beneficiaries of
the said Will and the attesting witnesses have not been
examined by the defendants as contemplated under
Section 63 of the Indian Succession Act, 1956 and Section
68 of the Indian Evidence Act, 1872. When this being the
facts and circumstances, the trial Court has erroneously
dismissed the suit. Therefore prays to allow the appeal.

9.2 He places reliance on the following decisions:

i. H. VENKATACHALA IYENGAR APPELLANT
Vs. B. N. THIMMAJAMMA AND OTHERS –
AIR 1959 SUPREME COURT 443


ii. JANKI NARAYAN BHOIR Vs. NARAYAN
NAMDEO KADAM - (2003) 2 SUPREME
COURT CASES 91


iii. JAGDISH CHAND SHARMA Vs. NARAIN
SINGH SAINI (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS - (2015) 8
SUPREME COURT CASES 615


iv. YUMNAM ONGBI TAMPHA IBEMA DEVI Vs.
YUMNAM JOYKUMAR SINGH AND OTHERS -
(2009) 4 SUPREME COURT CASES 780


v. S.R. SRINIVASA AND OTHERS Vs.
S.PADMAVATHAMMA - 2010 AIR SCW 3935


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vi. N.KAMALAM (DEAD) AND ANOTHER Vs.
AYYASAMY AND ANOTHER - (2001) 7
SUPREME COURT CASES 503 .

Submissions of counsel for Respondents-
defendants:
10. On the other hand, the learned counsels for the
defendant Nos.1, 2, 3, 8, 9, 10 and 11 submitted that
plaintiff herself has produced certified copy of the Will
dated 15.06.2001, that itself is sufficient that the plaintiff
had knowledge about the Will, which amounts to
admission of the Will by the plaintiff. Therefore, there is
no question of proof of Will by the defendants and it is
rightly considered by the trial Court. Further submitted
that in the pleadings and also in the cross examination of
the plaintiff, she has admitted of execution of Will.
Therefore, the trial court is correct in dismissing the suit.
It is further submitted that there is no evidence by the
plaintiff to prove that the defendant No.8 had played a
dominant role in getting the execution of Will dated
15.06.2001. When the plaintiff has alleged that fraud is
played in getting the execution of the Will dated

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15.06.2001, then it is burden on the plaintiff to prove as
to how the fraud is played, but without doing so, the
plaintiff has failed to prove in what way the fraud is
played. It is submitted that if she alleges the fraud is
played, it is his/her burden to prove in what way fraud is
played and in this case, the plaintiff has discharged this
burden. Further, the learned counsels for respondents
have taken the Court to the documentary evidence and
the oral evidence of the DWs.1 and 3 and submitted that
the testator, M.Krishnappa was in good state of health
both physically and mentally and after revoking the second
Will, he had executed the last and third Will and he has
acted upon the same and in possession of the property.
Therefore, the plaintiff is not entitled for any share in the
suit schedule properties. Therefore the judgment and
decree passed by the trial Court is justified. Hence, they
pray to dismiss the appeal.

10.1 He places reliance on the following decisions:

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i. Savithri and Others Vs. Karthyayani Amma
and Others – AIR 2008 SC 300
ii. Daulat Ram and Others Vs. Sodha and
Others - AIR 2005 SC 233
11. Upon hearing the rival arguments by both the
sides, the points that arise for consideration are as
follows:
“(1) Whether, under the facts and
circumstances of the present case,
defendant Nos.1, 2, 3(a) to 3(d), 8, 9,
10 and 11 have proved the Will dated
15.06.2001 as per the legal requirement
of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian
Evidence Act, 1872?

(2) Whether, under the facts and
circumstances of the case, the plaintiff
proves that the suit property is joint
family property of the plaintiff and
defendants, if so, whether the plaintiff is
entitled to share in the property and to
what extent?”


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RE. POINT NOS.1 AND 2:
12. Both the above points are taken up together for
common discussion on the facts of law in order to avoid
repetition.

13. The relationship between the plaintiff and the
defendants is not disputed. The original propositus is
M.Krishnappa @ Krishnamurty, who had two wives
namely, defendant No.1 - Sarojammal and defendant
Nos.7 - K.Kaveri. The plaintiff, husband of defendant
No.2, husband of defendant No.3 and defendant Nos.5 and
6 are the children of M.Krishnappa through his first wife.
Defendant Nos.8, 9, 10 and 11 are the children of
M.Krishnappa through second wife - K.Kaveri. These facts
are not disputed. M.Krishnappa has acquired suit schedule
properties by his hard earned money is also not disputed
by the parties in the suit. It is not disputed fact that
M.Krishnappa has executed first Will dated 06.03.1996
bequeathing the properties only in favour of his sons of
both wives. Later on, M.Krishnappa had executed a second

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Will dated 16.02.2001 by revoking the first Will thereby
bequeathing properties to all the children including
daughters and wives. But the plaintiff has questioned the
third Will dated 15.06.2001 by stating that this third Will is
contrary to the intention of testator M. Krishnappa, that
means which is contrary to the second Will dated
16.02.2001.

14. It is the case of the plaintiff that defendant
No.8 being an Advocate has played a dominant role in
getting the execution of the Will dated 15.06.2001. In the
plaint, the plaintiff has made pleadings at paras-7, 8, 9
and 10 that M.Krishnappa had executed third Will dated
15.06.2001 upon cancelling second Will dated 16.02.2001
thereby mentioning that the daughters have no rights is
contrary to the intention of the testator i.e., father of the
plaintiff. This way the plaintiff had questioned the Will
dated 15.06.2001. The intention of the testator
M.Krishnappa can be gathered upon chronological events
of execution of three Wills. First Will is executed on

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06.03.1996 thereby properties were bequeathed in favour
of sons. Thereafter, with the advent of amendment of the
Hindu Succession Act, revoking the first Will 06.03.1996,
had executed the second Will dated 16.02.2001 by
mentioning the amendment of the Act and bequeathed the
suit schedule properties to all sons, daughters and two
wives. But, the third Will dated 15.06.2001 is only to the
sons excluding the daughters of the two wives of
Krishnappa.

15. Therefore, in this context, the plaintiff has
questioned the third Will dated 15.06.2001 that it is
contrary to the intention of the testator. Further at para-8
in the plaint, the pleadings is made by the plaintiff that
defendant No.8 had played a dominant role in cancelling
the second Will and re-writing the last Will dated
15.06.2001. It is the pleadings of the plaintiffs that the
defendant No.8, who is the son of the second wife had
hatched a conspiracy in executing the Will. It is further
pleaded that the Testator, M.Krishnappa was not having

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good state of health physically and mentally and the
defendant No.8 has managed to get execution of the Will
dated 15.06.2001, thereby deprived the legitimate share
of the plaintiff and other daughters.

16. When this being the facts, it is pleaded in the
plaint that the trial Court, according to pleadings of both
the sides, has wrongly observed and given finding that the
Will dated 15.06.2001 is not in dispute and the
observation made by the trial Court in para-12 is contrary
to the pleadings made by the plaintiff.
17. Further the trial Court has observed that the
plaintiff has produced the Will dated 15.06.2001 as per
Ex.P.3 along with the suit itself is sufficient to infer that
the plaintiff and other defendants had knowledge about
the execution. Just because, the plaintiff has produced the
certificate copy of the Will dated 15.06.2001, it does not
amount to admitting execution of the Will. The Will- Ex.P.3
has to be proved as per the legal requirements under
Section 63 of Indian Succession Act and Section 68 of the

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Indian Evidence Act. But the trial Court has wrongly placed
burden on the plaintiff to prove the Will dated 15.06.2001
is not binding on her. Just because, the plaintiff has
produced the certified copy of Will dated 15.06.2001
cannot absolve the proof of execution of will by the
defendants who are propounder of the Will. Those who are
propounder of the Will shall have to discharge their burden
in proving execution of Will as per Section 63 of the Indian
Evidence Act and under section 68 of Indian Evidence Act
and under Section 68 of the Indian Evidence Act and this
principle of law is no longer res integra .
18. I place reliance on the judgment of the Hon’ble
Supreme Court in the case of H.Venkatachala Iyengar
(stated supra) at paragraph Nos.18, 19, 20 and 21 were
pleased to lay down the law as follows:
“18. The party propounding a will or
otherwise making a claim under a will is
no doubt seeking to prove a document
and, in deciding how it is to be proved,
reference must inevitably be made to
the statutory provisions which govern
the proof of documents. Sections 67 and
68 of the Evidence Act are relevant for

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this purpose. Under Section 67, if a
document is alleged to be signed by any
person, the signature of the said person
must be proved to be in his handwriting,
and for proving such a handwriting
under Sections 45 and 47 of the Act the
opinions of experts and of persons
acquainted with the handwriting of the
person concerned are made relevant.
Section 68 deals with the proof of the
execution of the document required by
law to be attested; and it provides that
such a document shall not be used as
evidence until one attesting witness at
least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the
nature of proof which must be satisfied
by the party who relies on a document
in a court of law. Similarly, Sections 59
and 63 of the Indian Succession Act are
also relevant. Thus the question as to
whether the will set up by the
propounder is proved to be the last will
of the testator has to be decided in the
light of these provision. It would prima
facie be true to say that the will has to
be proved like any other document
except as to the special requirements of
attestation prescribed by Section 63 of
the Indian Succession Act, As in the
case of proof of wills it would be idle to
expect proof with mathematical
certainty. The test to be applied would
be the usual test of the satisfaction of
the prudent mind in such matters.
19. However, there is one important
feature which distinguishes wills from
other documents. Unlike other
documents the will speaks from the
death of the testator, and so, when it is

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propounded or produced before a court,
the testator who has already departed
the world cannot say whether it is his
will or not; and this aspect naturally
introduces an element of solemnity in
the decision of the question as to
whether the document propounded is
proved to be the last will and testament
of the departed testator. Even so, in
dealing with the proof of wills the court
will start on the same enquiry as in the
case of the proof of documents. The
propounder would be called upon to
show by satisfactory evidence that the
will was signed by the testator, that the
testator at the relevant time was in a
sound and disposing state of mind, that
he understood the nature and effect of
the dispositions and put his signature to
the document of his own free will.
Ordinarily when the evidence adduced in
support of the will is disinterested,
satisfactory and sufficient to prove the
sound and disposing state of the
testator's mind and his signature as
required by law, courts would be
justified in making a finding in favour of
the propounder. In other words, the
onus on the propounder can be taken to
be discharged on proof of the essential
facts just indicated.
20. There may, however, be cases in
which the execution of the will may be
surrounded by suspicious circumstances.
The alleged signature of the testator
may be very shaky and doubtful and
evidence in support of the propounder's
case that the signature, in question is
the signature of the testator may not
remove the doubt created by the
appearance of the signature; the

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condition of the testator's mind may
appear to be very feeble and debilitated;
and evidence adduced may not succeed
in removing the legitimate doubt as to
the mental capacity of the testator; the
dispositions made in the will may appear
to be unnatural, improbable or unfair in
the light of relevant circumstances; or,
the will may otherwise indicate that the
said dispositions may not be the result
of the testator's free will and mind. In
such cases the court would naturally
expect that all legitimate suspicions
should be completely removed before
the document is accepted as the last will
of the testator. The presence of such
suspicious circumstances naturally tends
to make the initial onus very heavy;
and, unless it is satisfactorily
discharged, courts would be reluctant to
treat the document as the last will of the
testator. It is true that, if a caveat is
filed alleging the exercise of undue
influence, fraud or coercion in respect of
the execution of the will propounded,
such pleas may have to be proved by
the caveators; but, even without such
pleas circumstances may raise a doubt
as to whether the testator was acting of
his own free will in executing the will,
and in such circumstances, it would be a
part of the initial onus to remove any
such legitimate doubts in the matter.
21. Apart from the suspicious
circumstances above referre to in some
cases the wills propounded disclose
another infirmity. Propounders
themselves take a prominent part in the
execution of the wills which confer on
them substantial benefits. If it is shown
that the propounder has taken a

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prominent part in the execution of the
will and has received substantial benefit
under it, that itself is generally treated
as a suspicious circumstance attending
the execution of the will and the
propounder is required to remove the
said suspicion by clear and satisfactory
evidence. It is in connection with wills
that present such suspicious
circumstances that decisions of English
courts often mention the test of the
satisfaction of judicial conscience. The
test merely emphasizes that, in
determining the question as to whether
an instrument produced before the court
is the last will of the testator, the court
is deciding a solemn question and it
must be fully satisfied that it had been
validly executed by the testator who is
no longer alive.

19. Further if the Will is registered or unregistered
one, it does not take away proof of Will by examining
atleast one attesting witness. Therefore, it is always
burden on the defendants who propounded the Will to
prove the execution, but the trial Court has wrongly placed
burden on the plaintiff. In this regard, I also place reliance
on the judgment of the Hon’ble Supreme Court in the case
of Jagdish Chand Sharma (stated supra) wherein at

paragraph Nos.21 and 22 observed as follows:

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“21. As would be evident from the contents
of Section 63 of the Act that to execute the
will as contemplated therein, the testator
would have to sign or affix his mark to it or
the same has to be signed by some other
person in his presence and on his direction.
Further, the signature or mark of the
testator or the signature of the person
signing for him has to be so placed that it
would appear that it was intended thereby
to give effect to the writing as will. The
section further mandates that the will shall
have to be attested by two or more
witnesses each of whom has seen the
testator sign or affix his mark to it or has
seen some other persons sign it, in the
presence and on the direction of the
testator, or has received from the testator,
personal acknowledgment of a signature or
mark, or the signature of such other
persons and that each of the witnesses has
signed the will in the presence of the
testator. It is, however, clarified that it
would not be necessary that more than one
witness be present at the same time and
that no particular form of attestation would
be necessary.
22. It cannot be gainsaid that the above
legislatively prescribed essentials of a valid
execution and attestation of a will under the
Act are mandatory in nature, so much so
that any failure or deficiency in adherence
thereto would be at the pain of invalidation
of such document/instrument of disposition
of property.
22.1. In the evidentiary context Section 68
of the 1872 Act enjoins that if a document
is required by law to be attested, it would
not be used as evidence unless one
attesting witness, at least, if alive, and is

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subject to the process of the court and
capable of giving evidence proves its
execution. The proviso attached to this
section relaxes this requirement in case of a
document, not being a will, but has been
registered in accordance with the provisions
of the Registration Act, 1908 unless its
execution by the person by whom it
purports to have been executed, is
specifically denied.
22.2. These statutory provisions, thus,
make it incumbent for a document required
by law to be attested to have its execution
proved by at least one of the attesting
witnesses, if alive, and is subject to the
process of the court conducting the
proceedings involved and is capable of
giving evidence. This rigour is, however,
eased in case of a document also required
to be attested but not a will, if the same has
been registered in accordance with the
provisions of the Registration Act, 1908
unless the execution of this document by
the person said to have executed it denies
the same. In any view of the matter,
however, the relaxation extended by the
proviso is of no avail qua a will. The proof of
a will to be admissible in evidence with
probative potential, being a document
required by law to be attested by two
witnesses, would necessarily need proof of
its execution through at least one of the
attesting witnesses, if alive, and subject to
the process of the court concerned and is
capable of giving evidence.”

20. Where it is the mandatory of law that, things to
be done in a particular way and that must be done in that

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way only otherwise not. For proving the Will, the legal
requirement as per Section 68 of the Indian Evidence Act
is, atleast one of the attesting witness shall have to be
examined otherwise the Will cannot said to be proved one.
But in the present case, the defendants have not at all
examined any of the attesting witnesses. D.W.1 is
defendant No.9, D.W.2 is defendant No.3 and D.W.3 is
defendant No.2 are all the beneficiaries of the Will. But
these defendants have not examined any of the single
witness who has witnessed execution of the Will.
Furthermore, the defendants have not produced the
original Will stated to have been executed by late
M.Krishnappa and the defendants have produced the
documentary evidence i.e., wedding card, photographs,
tax paid receipts, katha extract only. When these
defendants are the beneficiaries and have propounded the
Will by making defence that late M.Krishnappa executed
the Will, then it is their burden to prove the Will, but not
the plaintiff. In this regard, the trial Court has wrongly
framed issues putting burden on the plaintiff.

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21. Omission to frame proper issues does not
absolve the burden to prove. According to the defendants,
if proper issue is not framed, then the defendants cannot
be silent if proper issues are not framed. Hence, omission
to frame issues cannot take away the duty cast on the
defendants to prove their facts and issues according to
their respective assertions. When the plaintiff and
defendants are putforthing two different facts and issues,
then it is the burden on them to prove their facts and
issues according to their respective assertions. Therefore,
when the defendants have taken the defence that
M.Krishnappa executed the Will, it is their burden to prove
the execution of Will being propounders of the Will, but it
is not the plaintiff as it is wrongly done by the Trial Court.
22. Though, fundamentally, it is the duty cast on
the Court to frame proper issues and if proper issues are
not framed, then every liberty is reserved for the parties
to request for recasting issue, because the parties know
their responsibility, burden and onus to prove their facts.

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Therefore, just because, proper issues according to the
parties are not framed, then the parties cannot keep
silence for not framing proper issues. Therefore, it is also
duty cast on the party in the suit requesting the Court to
frame proper issues enabling the Court to come to a right
conclusion. The burden of proof on the facts and issues
cannot be taken away, just because, there is omission to
frame proper issues. Therefore, it is the duty of both, the
courts and parties/advocates as per Order XIV Rule 3 of
CPC ensuring to frame proper issues.
23. Order XIV of Code of Civil Procedure deals with
settlement of issues and determination of suit on issues of
law or on issues agreed upon. Rule 1 of Order XIV
stipulates framing of issues. Issues are of two kinds:

i. Issues of facts

ii. Issues of law

24. Each material proposition affirmed by one party
and denied by other shall form the subject of a distinct

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issue. Clause 5 of Rule 1 of Order XIV of CPC stipulates as
follows:
“(5) At the first hearing of the suit the Court shall,
after reading the plaint and the written statements, if any,
and after examination under rule 2 of Order X and after
hearing the parties are at variance, and shall thereupon
proceed to frame and record the issues on which the right
decision of the case appears to depend.”

25. Rule 4 of Order XIV of CPC states that Court
may examine witnesses or documents before framing
issues and Rule 5 of Order XIV of CPC states that Power to
amend and strike out issues. Upon combined reading of
these two rules, the Court shall have to hear the
advocates/parties and after reading the written statement
the Court shall ascertain upon what material propositions
of fact or of law the parties are at variance and so then
shall proceed to frame and record the issue on which the
right position of the case appears to depend. Therefore, if
necessity arises, the Court may hear the parties/advocates
before framing issues. It is not only prerogative duty cast
on the Court to frame issues, but also advocates/parties

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shall assist the Court to frame proper issues. The
advocates/parties shall not be mute spectators, just
leaving the Court to frame issues without taking any
responsibility for framing issues. If the Court does not
frame proper issues or any omission is occurred ignoring
the material proposition while framing issues, then the
advocates/parties shall at every liberty to request the
Court to recast issues. The object of framing issues is to
enable the parties to fix the burden of proof on them to
prove their facts in issue by placing evidence to discharge
their burden of proof of facts in issue. Therefore, based
on these issues, the parties know what would be their
burden/onus in proving their facts in issue. The
advocates/parties know very well about their case and the
burden that is likely to be put on them to prove the facts
in issue. If either plaintiff or defendant makes material
propositions and denial by other parties, then it is burden
on the parties to prove their case by discharging their
burden. Therefore, if either party asserts and denies, then
the parties/advocates know very well about what they are

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going to prove or in such an event, if any omission is
made while framing issue that can be brought to the
notice of the Court for amending or striking out the
issues. The advocates/parties know very well about their
case and what they are going to prove. Under these
circumstances, if proper issues are not framed then the
parties/advocates knowing their case shall have to show
their accountability in framing issues, shall request the
Court to frame proper issues with putting burden on whom
it lies. Therefore, the advocates/parties have very
important role at the initial stage itself in assisting the
Court for framing the proper issues putting burden on
whose party the facts in issue are to be proved.
26. The Hon’ble Supreme Court in the judgment of
MAKHAN LAL BANGAL vs. MANAS BHUNIA AND
OTHERS reported in (2001) 2 SCC 652 at Para 19 held
as follows:
“(19)………………...The stage of framing the issues is an
important one inasmuch as on that day the scope of the
trial is determined by laying the path on which the trial

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shall proceed excluding diversions and departures
therefrom. The date fixed for settlement of issues is,
therefore, a date fixed for hearing. The real dispute
between the parties is determined, the area of conflict is
narrowed and the concave mirror held by the court
reflecting the pleadings of the parties pinpoints into
issues, the disputes on which the two sides differ. The
correct decision of civil lis largely depends on correct
framing of issues, correctly determining the real points
in controversy which need to be decided. The scheme of
order XIV of the Code of Civil Procedure dealing with
settlement of issues shows that an issue arises when a
material proposition of fact or law is affirmed by one
party and denied by the other. Each material proposition
affirmed by one party and denied by other should form
the subject of distinct issue. An obligation is cast on the
court to read the plaint/petition and the written
statement/counter, if any, and then determine with the
assistance of the learned counsel for the parties, the
material propositions of fact or of law on which the
parties are at variance. The issues shall be framed and
recorded on which the decision of the case shall depend.
The parties and their counsel are bound to assist
the court in the process of framing of issues. Duty
of the counsel does not belittle the primary obligation
cast on the court. It is for the Presiding Judge to exert
himself so as to frame sufficiently expressive issues. An
omission to frame proper issues may be a ground for
remanding the case for retrial subject to prejudice
having been shown to have resulted by the omission.
The petition may be disposed of at the first hearing if it
appears that the parties are not at issue on any material
question of law or of fact and the court may at once
pronounce the judgment. If the parties are at issue on

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some questions of law or of fact, the suit or petition shall
be fixed for trial calling upon the parties to adduce
evidence on issues of fact. The evidence shall be
confined to issues and the pleadings. No evidence on
controversies not covered by issues and the pleadings,
shall normally be admitted, for each party leads
evidence in support of issues the burden of proving
which lies on him. The object of an issue is to tie
down the evidence and arguments and decision to
a particular question so that there may be no
doubt on what the dispute is. The judgment, then
proceeding issue-wise would be able to tell precisely how
the dispute was decided.”
(emphasis supplied by me)
27. Therefore, the counsels do not become silent
while at the stage of framing issues, though it is the
primary duty of the Court to frame issues, but soon after
framing issues or in the process of framing issues, the
counsels shall assist the Court for framing proper issues.
The counsels may file a memo in this regard requesting
the Court to frame proper issues as above discussed.
Since the parties/advocates know what facts are going to
be proved and it is their burden, and the same shall be
stated correctly while framing the issues. If issues are not
framed properly or omitted to frame issues, then the

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parties/advocates cannot take advantage of it under the
impression that issue is not framed of putting burden of
proof on them. Though the Court omits to frame proper
issue regarding burden of proof of facts in issue then the
parties/advocates are not to be mute spectators;
otherwise, the parties/advocates deprived of getting an
opportunity to discharge their burden. Therefore, the
parties and their advocates are bound to assist the Court
in the process of framing of issues. The object of an issue
is to tie down the evidence, arguments and decision to a
particular question so that there may be no doubt of what
the dispute is. It ensures speedy trial in civil cases so that
the Court can focus on the controversies involved in the
suits are making roving walk.
28. Though, in the present case, the trial Court has
not framed issues putting burden on the defendants to
prove execution of Will, but it is the duty cast on the
defendants requesting the trial Court to recast issues, but
did not do so. Therefore, just because, proper issues are

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not framed, that cannot take away the burden of proof
which is inherently on the parties as per their pleadings
adduced either in the plaint or in written statement.
Furthermore, on the facts that the defendants have not
examined any of the attesting witnesses to prove the Will
and what would be the consequences regarding proof of
Will, I place reliance on the judgment of the Hon’ble
Supreme Court in the case of Yumnam Ongbi Tampha
ibema Devi (stated supra), wherein the Hon’ble
Supreme Court has laid down the law regarding the due
execution of Will and at paragraph Nos.11, 12 and 13, it is
held as follows:
“11. As per provisions of Section 63 of the
Succession Act, for the due execution of a
will:
(1) the testator should sign or affix his
mark to the will;
(2) the signature or the mark of the
testator should be so placed that it should
appear that it was intended thereby to give
effect to the writing as a will;
(3) the will should be attested by two or
more witnesses, and

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(4) each of the said witnesses must
have seen the testator signing or affixing his
mark to the will and each of them should
sign the will in the presence of the testator.
12. The attestation of the will in the
manner stated above is not an empty
formality. It means signing a document for
the purpose of testifying of the signatures of
the executant. The attested (sic attesting)
witness should put his signature on the
will animo attestandi. It is not necessary
that more than one witness be present at
the same time and no particular form of
attestation is necessary. Since a will is
required by law to be attested, its execution
has to be proved in the manner laid down in
the section and the Evidence Act which
requires that at least one attesting witness
has to be examined for the purpose of
proving the execution of such a document.
13. Therefore, having regard to the
provisions of Section 68 of the Evidence Act
and Section 63 of the Succession Act, a will
to be valid should be attested by two or
more witnesses in the manner provided
therein and the propounder thereof should
examine one attesting witness to prove the
will. The attesting witness should speak not
only about the testator's signature or
affixing his mark to the will but also that
each of the witnesses had signed the will in
the presence of the testator.”

29. Further the Hon’ble Supreme Court in the case
of S.R.Srinivasa (stated supra), wherein at paragraph
Nos.2 and 3 held as follows:

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“2. Briefly stated the facts of the case
are that the plaintiffs claimed that
Puttathayamma was the wife of Sivaramaiah
who predeceased her in 1950.
Puttathayamma died on 15-11-1979. She
had four children. Lalithamma (daughter)
who died in 1990, was the original plaintiff.
Subbaramaiah (son) who died issueless in
1973 and Smt Kamalamma (daughter) also
died issueless in 1998. She was impleaded as
Defendant 4 in this suit. Smt Indiramma was
the fourth child. She also died issueless on
24-10-1985. It is claimed that upon the
death of Subbaramaiah, Puttathayamma
inherited the suit property and became the
absolute owner being Class 1 heir of
Subbaramaiah. Upon the death of
Puttathayamma, the deceased plaintiff,
Defendant 4 Kamalamma and Indiramma
inherited her property. During her lifetime,
Puttathayamma was living with Indiramma.
Upon her death, Indiramma continued to be
in possession of the property. The dispute
about the property arose soon after the
death of Indiramma.
3. Since the original plaintiff Lalithamma
and Defendant 4 were residing outside, they
did not come to know about the death of
their sister, Indiramma. Defendant 1
claiming to be a close relative of deceased
Indiramma organised and performed her
cremation ceremony. The house in which
Indiramma was residing i.e. the schedule
property contained a lot of movable
properties such as gold and silver jewellery
and other articles which were of considerable
value. He took charge of the house as well as
the movable properties by putting it under
lock and key. On learning about the death of
their sister, the appellants and Defendant 4
came to Mysore. They demanded that

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Defendant 1 should hand over the possession
of the house and movable properties. He,
however, refused to do so asserting that he
was the absolute owner of the entire
property. Not only this, it is stated that
Defendant 1 had taken away several lakhs of
rupees which had been kept by Indiramma in
various fixed deposits. Defendant 1 had
declined to hand over the title deeds of the
schedule property as well as the bank
deposit receipts.”

30. Further the Hon’ble Supreme Court in the case
of N.Kamalam (stated supra) wherein at paragraph
Nos.1 and 3 held as follows:
“1. The Latin expressions onus
probandi and animo attestandi are the two
basic features in the matter of the civil
court's exercise of testamentary
jurisdiction. Whereas onus probandi lies in
every case upon the party propounding a
will, the expression animo attestandi means
and implies animus to attest: to put it
differently and in common parlance, it
means intent to attest. As regards the latter
maxim, the attesting witness must
subscribe with the intent that the
subscription of the signature made stands
by way of a complete attestation of the will
and the evidence is admissible to show
whether such was the intention or not (see
in this context Theobald on Wills, 12th Edn.,
p. 129). This Court in the case of Girja Datt
Singh v. Gangotri Datt Singh [AIR 1955 SC
346] held that two persons who had
identified the testator at the time of
registration of the will and had appended

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their signatures at the foot of the
endorsement by the Sub-Registrar, were
not attesting witnesses as their signatures
were not put animo attestandi. In an earlier
decision of the Calcutta High Court
in Abinash Chandra Bidyanidhi
Bhattacharya v. Dasarath Malo [ILR (1929)
56 Cal 598 : AIR 1929 Cal 123] it was held
that a person who had put his name under
the word “scribe” was not an attesting
witness as he had put his signature only for
the purpose of authenticating that he was a
“scribe”. In a similar vein, the Privy Council
in Shiam Sundar Singh v. Jagannath
Singh [54 MLJ 43 : AIR 1927 PC 248] held
that the legatees who had put their
signatures on the will in token of their
consent to its execution were not attesting
witnesses and were not disqualified from
taking as legatees. In this context,
reference may be made to the decision of
this Court in M.L. Abdul Jabbar
Sahib v. M.V. Venkata Sastri &
Sons [(1969) 1 SCC 573 : (1969) 3 SCR
513] wherein this Court upon reference to
Section 3 of the Transfer of Property Act
has the following to state: (AIR p. 1151,
para 8)
“It is to be noticed that the word ‘attested’,
the thing to be defined, occurs as part of
the definition itself. To attest is to bear
witness to a fact. Briefly put, the essential
conditions of a valid attestation under
Section 3 are: (1) two or more witnesses
have seen the executant sign the
instrument or have received from him a
personal acknowledgement of his signature;
(2) with a view to attest or to bear witness
to this fact each of them has signed the
instrument in the presence of the
executant. It is essential that the witness

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should have put his signature animo
attestandi, that is, for the purpose of
attesting that he has seen the executant
sign or has received from him a personal
acknowledgement of his signature. If a
person puts his signature on the document
for some other purpose, e.g., to certify that
he is a scribe or an identifier or a
registering officer, he is not an attesting
witness.”
3. Turning on to the former
expression onus probandi, it is now a fairly
well-settled principle that the same lies in
every case upon the party propounding the
will and may satisfy the court's conscience
that the instrument as propounded is the
last will of a free and capable testator,
meaning thereby obviously, that the
testator at the time when he subscribed his
signature on to the will had a sound and
disposing state of mind and memory and
ordinarily, however, the onus is discharged
as regards the due execution of the will if
the propounder leads evidence to show that
the will bears the signature and mark of the
testator and that the will is duly attested.
This attestation however, shall have to be in
accordance with Section 68 of the Evidence
Act which requires that if a document is
required by law to be attested, it shall not
be used as evidence until at least one
attesting witness has been called for the
purpose of proving its execution and the
same is so however, in the event of there
being an attesting witness alive and capable
of giving the evidence. The law is also
equally well settled that in the event of
there being circumstances surrounding the
execution of the will shrouded in suspicion,
it is the duty paramount on the part of the

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propounder to remove that suspicion by
leading satisfactory evidence.”

31. Upon appreciating the evidence on record,
admittedly, the defendants have not examined any of the
attesting witnesses to prove the Will. Mere production of
Will dated 15.06.2001 cannot prove execution of the said
Will. Where the defendants being propounder has
contended that M.Krishnappa has revoked the second Will
and executed the third Will dated 15.06.2001 it is the
burden cast on the defendants to prove the Will as
contemplated under Section 68 of the Indian Evidence Act
and under Section 63 of Indian Succession Act otherwise,
it cannot be said that the execution of Will is proved.
32. Upon considering both the second and third
Wills dated 16.02.2001 and 15.06.2001 respectively, in
the second Will, the testator M.Krishnappa has assigned
the reason as to why he has bequeathed all the properties
to all coparceners including daughters and wife, but in the
third Will dated 15.06.2001 only sons have been

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bequeathed, which is contrary to the intension appearing
of the testator in the second Will. Therefore, there should
have been the reasoning as to why the daughters were
excluded when the daughters are also co-parceners in the
bequeathed property in the second Will. But there is no
reasoning in the third Will for such exclusion.
33. Further it is the allegation of plaintiff that
defendant No.8 played dominant role in getting execution
of third Will. The plaintiff has not pleaded how fraud is
played by defendant No.8. Therefore, there is no proof of
fraud by defendant No.8. In this regard, if the plaintiff had
contended the play of fraud by defendant No.8, then it is
the burden on the plaintiff to prove the same as per the
dictum of the Hon'ble Supreme Court in the cases of
Daulat Ram and Others (stated supra) and Savithri
and Others (stated supra), relied on by the counsel for
the respondents/defendants. Therefore, the trial Court
without considering the legal provisions in this regard has

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erroneously delivered the judgment and decree by
dismissing the suit.
34. The role of attesting witness is that the
attesting witness has to depose that he has witnessed the
fact that the testator executed the Will and he has put
signature on the Will. Therefore, the importance of
examining of attesting witness is to prove the due
execution of Will by the testator.

35. The testator cannot be summoned from the
graveyard. Therefore, the Will is such type of document is
to be proved as per the legal requirements as above
stated. Therefore, the role of attesting witness is to prove
the due execution of Will. Also it is the burden on the
propounders of the Will to prove that why testator had
bequeathed the property in favour of sons only excluding
others by stating the reasons, but here when analyzing
second and third Wills dated 16.02.2001 and 15.06.2001
respectively, in the second Will, the testator late
M.Krishnappa has bequeathed the property to all the

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coparceners, but in the third Will, only sons were
bequeathed property and why giving amount of Rs.5,000/-
only to the daughters for a period of five years is not
forthcoming in the Will.

36. Therefore, upon considering and appreciating
the evidence on record, in this regard, a suspicious
circumstances are raised regarding execution of third Will
dated 15.06.2001. Further the trial Court had observed
that the plaintiff has knowledge about the execution of Will
and accordingly, has produced the said Will which is
marked as Ex.P.3. Just because, the plaintiff had
knowledge regarding the Will and has produced the Will
that cannot absolve the burden of proof on the defendants
to prove the due execution of Will when the said will is
questioned. In this regard, the trial Court has committed
error in holding that the legal requirement need not be
followed in execution of Will. Therefore, the judgment and
decree passed by the trial Court is liable to be set aside.


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37. Furthermore, though, the plaintiff has taken the
contention that M.Krishnappa did not have good health to
execute the Will, but for this, from either side there is no
evidence, but as discussed above, the Will is not proved as
per the legal requirements. Therefore, whether the
testator had good health or not, cannot be gone into
aspect. Upon considering the cross-examination of the
plaintiff-P.W.1, the major contribution is done regarding
knowledge of plaintiff towards the Will. As discussed
above, just because, the plaintiff has knowledge regarding
the Will that cannot absolve the burden of proof on the
defendants, when the Will itself is questioned.

38. Therefore, while appreciating the evidence on
record as discussed above and applying the principle of
law laid down by the Hon'ble Supreme Court and
mandatory requirements to prove the execution of Will is
considered, the defendants have failed to prove the due
execution of Will dated 15.06.2001 as per law. In this
regard, the trial Court has committed serious error in

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considering the case in true and correct perspective
manner as per the pleadings adduced by the parties.
Therefore, the judgment and decree passed by the trial
Court is liable to be set aside. Thus, the appeal is liable to
be allowed.

39. Thus, in view of which, the plaintiff is entitled to
share in the property as there is no dispute regarding the
suit schedule property is joint family and ancestral
property and also the relationship between the parties are
not disputed. The plaintiff is the daughter of M.Krishnappa
and K. Sarojammal and defendant Nos.2, 3, 4 and 5 are
the sons and daughters through his first wife and
defendant No.8, 9, 10 and 11 are the sons and daughters
through his second wife. Therefore, the plaintiff is entitled
th
to 1/10 share in the suit schedule property. The prayer
for decreeing mesne profit is rejected. Hence, I answer
point Nos.1 in negative and point No.2 in affirmative .

40. Accordingly, I proceed to pass the following:


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ORDER


i. The appeal is allowed .

ii. The impugned judgment and decree dated
26.09.2014 passed in O.S.No.3086/2005 on
the file of XVIII Addl. City Civil Judge,
Bengaluru, is hereby set aside.

iii. The suit of plaintiff is partly decreed.

iv. The plaintiff and other daughters and sons
th
are entitled to 1/10 share each in the suit
schedule property. The prayer sought for
mesne profit is hereby rejected.

v. Draw decree accordingly.

vi. No order as to costs.

vii. Registry is directed to transmit the TCR to
the concerned Court forthwith.


Sd/-
JUDGE

DR: Para 1 to 16
PB: Para 17 to 22 & 28 to end.
SRA: Para 23 to 27
List No.: 2 Sl No.: 65