VERDICTUM.

IN
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IN THE HIGH COURT OF KARNATAKA,

R
DHARWAD BENCH

DATED THIS THE 5TH DAY OF DECEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

REGULAR SECOND APPEAL NO.5675 OF 2009 (DEC/INJ-)

BETWEEN:

1. SHRI. VISHWANATH NIRVENEPPA

BURJI,
AGE 69 YEARS,
OCC: AGRICULTURE AND BUSINESS
R/O BHOJ, TAL:CHIKODI – 591 201.
DIST:BELGAUM.

2. SMT.KASTURI
W/O JAGADEESH KOTHIWALE
AGE YEARS, OCC: H/W
R/O KAROSHI, TAL:CHIKODI– 591 201.
DIST:BELGAUM

3. SMT. NEELAWWA
W/O NANDEPPA HATTARAGI
AGE YEARS, OCC: H/W
R/O BHOJ, TAL:CHIKODI – 591 201
DIST:BELGAUM

(A-3 SINCE DECEASED AND LR’S ARE

ARRAYED AS RESPONDENTS 7,8,9)
...APPELLANTS
(BY SRI. SHIVRAJ.S. BALLOLI, ADVOCATE FOR A1 & A2;
A3-DECEASED)
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AND:

1 . SHRI.UMESH
S/O MAHADEV KUDACHI,
AGE 37 YEARS,
OCC:AGRICULTURE,
R/O INGALI, TAL: CHIKODI–591201
DIST:BELGAUM.

2 . SHRI NANDESHWAR,
S/O MAHADEVKUDACHI
AGE 34 YEARS,
OCC: AGRICULTURE,
R/O INGALI, TAL:CHIKODI–591201,
DIST:BELGAUM.

3 . MISS ANJALI,
D/O MAHADEVKUDACHI
AGE 29 YEARS,
OCC:AGRICULTURE,
R/O INGALI, TAL:CHIKODI–591201.
DIST: BELGAUM.

4 . MISS VIDHYA
D/O MAHADEVKUDACHI
AGE 27 YEARS
OCC:AGRICULTURE
R/O INGALI, TAL:CHIKODI–591 201
DIST:BELGAUM.

5 . SMT PARVATI
W/O MAHADEVKUDACHI
AGE 52 YEARS
OCC:AGRICULTURE
R/O INGALI, TAL:CHIKODI–591201.
DIST:BELGAUM

6 . SHRI SHANTVEER
S/O SADASHIV BURJI
OC:AGRICULTURE,
R/O BHOJ, TAL: CHIKODI-591210
DIST:BELGAUM
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7. SHRI. SANJEEV
S/O NANDEEPA HATTARGI,
AGE 62 YEARS,
OCC: BUSINESS,
R/O SADASHIVNAGAR,
BESIDE PETROL PUMP ROAD,
BELGAVI, BELGAVI – 590 019.

8. SHRI. RAJEEV
S/O NANDEEPA HATTARGI,
AGED 59 YEARS,
OCC: BUSINESS,
R/O SHIVABASAVA NAGAR, NEAR
KPTCL HALL, BELGAVI,
BELGAVI – 590 010.

9. SHRI. GIRISH
S/O NANDEEPA HATTARGI,
AGE 57 YEARS,
OCC: BUSINESS,
R/O SADASHIVNAGAR,
BESIDE PETROL PUMP ROAD,
BELGAVI, BELGAVI – 590 019.

(AMENDMENT CARRIED OUT IN

RESPECT OF R-7, 8 AND 9 V/O DT
12.06.2024)
……RESPONDENTS
(BY SRI. B S KAMATE, ADVOCATE FOR R1-R5;
R6, 7, AND 9 ARE SERVED;
V/O DATED 30.05.2024 NOTICE TO R8 IS HELD
SUFFICIENT)

THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT

& DECREE DTD: 12/11/2009 PASSED IN R.A.NO:2/2007 ON
THE FILE OF THE FAST TRACK COURT-I, CHIKODI, ALLOWING
THE APPEAL, FILED AGAINST THE JUDGMENT AND DECREE
DTD: 30/11/2006 PASSED IN O.S.NO.105/2000 ON THE FILE
OF THE CIVIL JUDGE (SR.DN), CHIKODI, DISMISSING THE
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SUIT FILED FOR DECLARATION AND CONSEQUENTIAL RELIEF

OF INJUNCTION.

THIS APPEAL, HAVING BEEN HEARD AND RESERVED AND

COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

CAV JUDGMENT

This Regular Second Appeal is filed by defendant

Nos.1 to 3 challenging the judgment and decree dated

12.11.2009 passed in R.A.No.2/2007 on the file of the

Fast Track Court-I, Chikodi, (for short 'the First

Appellate Court') by which the First Appellate Court

reversed the judgment and decree dated 30.11.2006

passed in O.S.No.105/2000 on the file of the Civil Judge

(Senior Division), Chikodi ( for short 'the Trial Court').

2. For the sake of convenience the rank of the

parties is referred to as per their status before the Trial

Court.

PLAINT:
3. The plaintiff filed the original suit for declaration

and permanent injunction by pleading that the suit

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properties are agricultural lands bearing R.S.No.571/3

measuring 7 acres 10 guntas to the extent of 1/3rd share

and house property bearing V.P.C.No.1117 of Bhoj Village.

Originally the suit properties were standing in the name of

Shivaputra Burji, who is brother-in-law of the plaintiff. In

the family partition the said suit properties were allotted to

the share of Shivaputra Burji. The defendant No.1 is

brother of Shivaputra Burji. Shivaputra Burji has acquired

the suit property through family partition and accordingly,

his name was mutated in the revenue records. Shivaputra

Burji died at Sangali on 09.05.1996 leaving behind his wife

Annapurna. Shivaputra Burji and Annapurna have no

issues. After the death of Shivaputra Burji, name of

Annapurna was entered in the revenue records and thus

Annapura had become owner and was in possession of the

suit property. The defendant Nos.2 and 3 are sisters of

deceased Shivaputra Burji, who were given in marriage

about 30 years before. The plaintiff is brother of

Annapurna, he is looking after the suit schedule land and

also during her lifetime, he was looking after her health

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and was cultivating the land on her behalf. It is pleaded

that relationship of Shivaputra Burji and Annapurna with

defendant Nos.1 to 3 were not cordial.

4. Smt. Annapurna during her lifetime was

suffering from ill-health because of kidney problem,

diabetes and Hyper-tension. Hence, she was admitted to

Adhar Hospital at Sangali by the plaintiff. The plaintiff was

looking after Smt.Annapurna, since Annapurna was not

keeping good health. Therefore, she expressed to Will

away the suit properties and accordingly on 19.07.2000

Annapurna executed her First and Last Will in Adhar

Hospital at Sangali in the presence of attesting witnesses,

Advocate and Notary bequeathing the properties in favour

of the plaintiff. It is pleaded that at the time of executing

the Will Annapurna was completely in conscious state of

mind and she has accordingly, bequeathed the property

through the Will.

5. On 26.07.2000 Annapurna died in Waneless

Hospital at Miraj. Thereafter, after the death of

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Annapurna the plaintiff became absolute owner of the suit

schedule lands.

6. The plaintiff had performed the last rites of

Annapurna, according to the customs prevailing in the

family. Therefore, plaintiff filed suit for declaration of his

ownership to the suit lands, by virtue of the Will dated

19.07.2000 and for consequential relief of injunction.

WRITTEN STATEMENT:

7. Defendant Nos.1 and 4 appeared before the

Trial Court through their Advocate. Defendants Nos.2, 3

and 5 have not appeared.

8. Defendant No.1 filed written statement and

denied the plaint averments. But admitted that suit

properties were belonging to Shivaputra Burji. After the

death of Shivaputra Burji, his wife Annapurna succeeded

to the suit property. After the death of Annapurna

defendant Nos.1 to 3 have succeeded to the suit

properties as legal heirs of Shivaputra Burji and

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Annapurna, as per Hindu Law. It is contended that

defendant Nos.1 to 3 are in possession and enjoyment of

the properties. Defendant No.1 denied execution of Will

dated 19.07.2000 by Annapurna. It is contended that the

said Will is created, concocted, forged and manipulated

one. Therefore, prays to dismiss the suit.

9. The Trial Court upon the pleadings has framed the

following issues:-

“1. Whether the plaintiff proves that Smt.

Annapurna out of her own wish and will has
executed a legal and valid Will on 19.07.2000
in his favour bequeathing the suit properties?

2. Whether the plaintiff proves that he is in

lawful possession of the suit properties on the
date of the suit?

3. Whether the Plaintiff is entitled to the

relief which he has claimed?

4. What order or decree? ”

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REASONING OF TRIAL COURT:

10. The Trial Court after appreciating the evidence

on record has dismissed the suit of the plaintiff on the

reason that the plaintiff was present at the time of

execution of the Will and plaintiff has failed to prove that

Annapurna was in sound state of mind, at the time of

executing the alleged Will. It has assigned reason that

mere execution of Will under Section 68 of the Indian

Evidence Act, 1872 and under Section 63 of Indian

Succession Act 1956, is not sufficient. The plaintiff being

propounder of the Will has to remove all the suspicious

circumstances, but has failed to remove the suspicious

circumstances and therefore, dismissed the suit.

11. Further, the reason given by the Trial Court is

that when Annapurna was admitted in the hospital in ICU

because of failure of kidneys and was under treatment

with external oxygen support, it is not possible for her to

execute the Will. It appreciated the evidence that when

Annapurna was given external oxygen support and was in

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ICU, it is not possible to execute Will by putting signature

or thumb impression and came to the conclusion that

Annapurna was not in sound state of mind. Further the

facts and evidence in the process of making the Will are

appreciated and found that the entire process of making

the Will is unnatural one, arising suspiciousness about

execution of will. Therefore, disbelieved the case of the

plaintiff. Discussion of the Trial Court is that when

Annapurna was in ICU, she could not give instructions to

execute the Will and it was not possible for her to take

records pertaining to suit lands to the Hospital and not

possible for her to give instructions to the Advocate for

preparing the Will, therefore, raised suspiciousness and

held that execution of the Will is disproved. Therefore,

Trial Court after opining that the entire process of making

the Will is unnatural one giving rise to suspiciousness,

accordingly disbelieving the case of the plaintiff dismissed

the suit.
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FIRST APPELLATE COURT:

12. Being aggrieved by dismissal of the suit, the

plaintiff has preferred regular appeal before the First

Appellate Court. The First Appellate Court has set aside

the judgment and decree passed by the Trial Court and

decreed the suit and declared that the plaintiff is the

owner of the suit land by virtue of the Will.

13. The First Appellate Court has assigned reasons

that the plaintiff has proved execution of Will as per the

legal requirement under Section 63 of the Indian

Succession Act 1975 and under Section 68 of the Indian

Evidence Act. Therefore, when the legal requirement of

execution of Will are complied with, then it is held that the

plaintiff has proved execution of Will and accordingly

declared the plaintiff as owner of the said land, hence

decreed the suit of the plaintiff as prayed for.

14. Being aggrieved by the judgment and decree

passed by the First Appellate Court, the defendant Nos.1

to 3 have preferred the present Second Appeal.

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SUBSTANTIAL QUESTIONS OF LAW:

15. This Court on 08.10.2013 while admitting the

appeal has framed the following substantial questions of

law:-

“1. Whether the lower appellate Court was justified

in believing the certificate issued by the Doctor
without his oral testimony when admittedly the Will
is said to have been executed while the executant
was in ICU and that admittedly, the executant died
within 5 days after execution of the Will ?

2. Whether the lower appellate Court has rightly

appreciated the evidence available on record while
reversing the judgment and decree passed by the
trial Court. ? ”

16. Heard arguments of learned counsel for both

the parties and perused the records.

SUBMISSIONS OF APPELLANTS/DEFENDANT
NOS .1 TO 3 :

17. The learned counsel for the appellant/defendant

Nos.1 to 3 submitted that the entire process of making the

Will as pleaded by the plaintiff is highly suspicious one and

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no prudent man can believe such process of making the

Will. Therefore, submitted that just because the legal

requirements as per Section 68 of the Indian Evidence Act

and Section 63 of the Indian Succession Act are complied

with, that cannot alone be made a ground to say that the

Will is properly executed. It is further submitted that the

deceased Annapurna was admitted in ICU and was under

ventilation and external oxygen was provided, besides

applying drips to the veins of Annapurna. But it is the

case of the plaintiff that the documents pertaining to lands

were taken to the Hospital also and the said documents

were handed over to the Advocate for preparation of the

Will and under such conditions a scribe and a notary came

to the Hospital and have taken instructions from

Annapurna to prepare the Will is highly impossible, which

creates suspiciousness. It is further submitted that it is

highly improbable that the plaintiff while admitting the

deceased to the Hospital that too in ICU, the records

pertaining to lands were taken along with the deceased,

this shows that the plaintiff has anticipated the death of

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Annapurna and he was present in the Hospital, which

shows the active participation of the plaintiff in getting

preparation of the Will and execution of the same, which

creates doubt regarding preparation of the Will.

18. It is further submitted that when admittedly the

deceased was provided external oxygen support, then the

deceased has given instructions for preparation of Will, is

not at all believable one. From the date of execution of

alleged Will within five days the deceased died. As per the

plaintiff the Will is prepared in Adhar Hospital, Sangali, but

the deceased died at Wanless Hospital at Miraj. Therefore,

these circumstances prove that it could not be possible to

execute the Will and therefore, the assertion made by the

plaintiff with regard to the Will, is not believable.

19. It is Further submitted that when this being the

health condition of deceased Annapurna, then the

certificate issued by the Doctor at Adhar Hospital, Sangali

as per Ex.P5(c) cannot be believed without corroboration

from the Doctor, who has issued the certificate. The

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Doctor, who has issued the certificate as per Ex.P5(c) is

not examined. Therefore, mere production of certificate of

the Doctor is not sufficient, which does not constitute

proving of the mental status of the deceased Annapurna.

But the First Appellate Court without considering the

evidence produced in the course of cross-examination and

without appreciating the evidence has blindly gone into

the aspect that the Will is proved, by mere compliance of

legal requirements. Therefore, submitted the Trial Court

in detail has appreciated the evidence on record and

rightly came to the conclusion that Will is not proved, thus

dismissed the suit. But the First Appellate Court without

appreciating the evidence on record only straight away on

the aspect that attesting witness is examined, hence legal

requirement is complied with, held the Will is proved. This

approach of the First Appellate Court is not correct as the

First Appellate Court has not appreciated the material on

record, hence the approach of the First Appellate Court is

perverse in nature, hence prays to set aside the judgment

and decree passed by the First Appellate Court. Mere

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attesting witness is examined as PW.2 does not constitute

valid execution of Will and proving the Will. But it is

incumbent upon the plaintiff, being propounder of Will to

remove all the suspicious circumstances, but that is not

done by the plaintiff. Hence the Trial Court after

considering all these evidences on record has rightly

dismissed the suit by holding the execution of the Will is

not proved. Hence, justified the judgment and decree

passed by the Trial Court and found fault with the

judgment and decree passed by the First Appellate Court.

Therefore, prays to allow the appeal and set aside the

judgment and decree passed by the First Appellate Court

by confirming the judgment and decree passed by the

Trial Court.

SUBMISSION OF COUNSEL FOR RESPONDENTS

/PLAINTIFFS:

20. On the other hand, learned counsel for the

respondents/plaintiffs submitted that the plaintiff being

propounder of the Will has examined PW.2, who is the

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attesting witness. Therefore, from the evidence of PW.2

execution of Will is proved. Hence the plaintiff has

complied with legal requirements of proving the Will, as

per Section 68 of the Indian Evidence Act and Section 63

of the Indian Succession Act and that is rightly considered

by the First Appellate Court. Hence justified the judgment

and decree passed by the First Appellate Court. Further

submitted that the process of making the Will is proved by

the plaintiff as deceased Annapurna had expressed to Will

away the properties in favour of the plaintiff and is proved

by the evidence of PW.2. PW.2 has deposed the process

of preparation of Will, to keep present a notary in the

hospital for attestation, and the Doctor has given a

certificate that the deceased was in sound mental status

and was aware of the worldly affairs. Therefore, it is

proved that the deceased was mentally alert and this is

rightly considered by the First Appellate Court. It is

further submitted that at the time of execution of the Will,

the plaintiff was not inside the ICU and he was outside the

hospital, and this proves that the plaintiff has not

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participated in making of the Will. Therefore, the plaintiff

did not play any role in execution of the Will, but the

deceased Annapurna on her own will and wish has

executed the Will, and that is rightly considered by the

First Appellate Court. Therefore, justified the judgment

and decree passed by the First Appellate Court. Hence

prays to dismiss the appeal.

REASONS:

21. The above two substantial questions of law are

considered together in order to avoid repetition of facts

and evidence.

22. The plaintiff is the propounder of the Will and

he filed suit for declaration that he has become owner of

the suit lands by virtue of the Will Ex.P5. It is the case of

the plaintiff that attesting witness was present, when

deceased was executing the Will and he is examined

before the Court. Therefore, the Will is proved.

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23. On the other hand, the defendants have stated

that the deceased Annapurna was in ICU at Adhar

Hospital, Sangali, and she was in feeble health condition,

could not give instructions for preparation of Will as she

was provided oxygen by external support. Hence,

execution of Will is not proved.

24. It is profitable to bark upon the principle of law

formulated by the Hon’ble Supreme Court and by this

Court regarding proof of Will, to apply them to consider

the facts, circumstances and evidence involved in this

case.

25. The Hon'ble Supreme Court in the judgment of

H. VENKATACHALA IYENGAR APPELLANT Vs. B. N.

THIMMAJAMMA AND OTHERS1 at Para Nos.18, 19, 20

and 21 stipulates as under:

"18. The party propounding a will or otherwise

making a claim under a will is no doubt seeking
to prove a document and, in deciding how it is
to be proved, reference must inevitably be made
to the statutory provisions which govern the

1
AIR 1959 SC 443
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proof of documents. Sections 67 and 68 of the

Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be
signed by any person, the signature of the said
person must be proved to be in his handwriting,
and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document
shall not be used as evidence until one attesting
witness at least has been called for the purpose
of proving its execution.

These provisions prescribe the requirements

and the nature of proof which must be satisfied
by the party who relies on a document in a court
of law. Similarly, Sections 59 and 63 of the
Indian Succession Act are also relevant. Thus
question as to whether the will set the 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 condition of the testator's mind
may appear to be very feeble and debilitated;
and evidence adduced may not succeed in
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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 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
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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.

26. Further, I place reliance on the judgment of

Hon'ble Supreme Court in the case of JAGADISH CHAND

SHARMA VS. NARIAN SINGH SAINI (DEAD)

THROUGH LEGAL REPRESENTATIVES AND OTHERS2

at Para Nos.21 and 22 held as under:

"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

2
(2015) 8 SCC 612
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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
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,
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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."

27. Further, I place reliance on the judgment of

Hon'ble Apex Court in the case of N. KAMALAM (DEAD)

AND ANOTHER Vs. AYYASAMY AND ANOTHER3 at

Para Nos.1 and 3 are held as under:

“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

3
(2001) 7 SCC 503
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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 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
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the witness 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 their being circumstances
surrounding the execution of the will shrouded in
suspicion, it is the duty paramount on the part of the
propounder to remove that suspicion by leading
satisfactory evidence."
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28. Further, I place reliance on the judgment of this

Court in the case of SRI. J. T. SURAPPA AND

ANOTHER VS. SRI SATCHIDHANANDENDRA

SARASWATHI SWAMIJI PUBLIC CHARITABLE TRUST

AND OTHERS4 at Para Nos.23 and 24 are held as under:

"23. There is one important feature which

distinguishes wills from other documents. It is one
of the most solemn document known to law.
Through it, a dead man entrusts to the living, the
carrying out of his wishes. As it is impossible, that
he can be called either to deny his signature or to
explain the circumstances in which it was made, it
is essential that trust worthy and effectual
evidence should be given to establish the Will.
Therefore, unlike other documents, the Will speaks
from the death of the testator. It is ambulatory
and it becomes effective and irrevocable on the
death of the testator. It is a declaration in the
prescribed manner of the intention of the person
making it, with regard to the matters which he
wishes to take effect upon or after his death.
Therefore, when it is 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.

4
ILR 2008 KAR 2115
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However, in the 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.

24. Therefore, the court has to tread a careful path

in the enquiry to be conducted with regard to Will.
The said path consists of five steps
"PANCHAPADI". The path of enquiry and steps to
be traversed are as under: —

(1) Whether the Will bears the signature or mark

of the testator and is duly attested by two
witnesses and whether any attesting witness is
examined to prove the Will?

(2) Whether the natural heirs have been

disinherited? If so, what is the reason?

(3) Whether the testator was in a sound state of

mind at the time of executing the Will?

(4) Whether any suspicious circumstances exist

surrounding the execution of the Will?

(5) Whether the Will has been executed in

accordance with Section 63 of the Indian
Succession Act, 1925, read with Section 68 of the
Evidence Act?"

29. The word "Will" is defined under Section 2(h)

of The Indian Succession Act, 1925 which reads as

follows:
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“Section 2(h) in The Indian Succession

Act, 1925
"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.

(emphasis supplied by me)”

30. Therefore, Will is legal declaration of the

intention of the testator to bequeath his property to the

propounder to be carried into effect after his death.

Therefore, it is also a burden on the propounder to prove

that the testator had intention to bequeath property by

placing circumstantial evidence.

31. Upon considering the principle of law laid down

as above stated, it is not only sufficient just because legal

requirement as per Section 68 of the Indian Evidence Act

and Section 63 of the Indian Succession Act, are complied

with that to hold that execution of will is proved, but also

suspicious circumstances shall have to be removed. As

held above compliance of legal requirement is only first

step towards proving execution of Will. Just because legal

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requirements are complied with, that cannot in toto prove

execution of Will, unless the other surrounding suspicious

circumstances are proved to have been removed by the

propounder of the Will. PW.2 has stated in his evidence

that he knew the deceased Annapurna, her husband and

plaintiff and when he heard the fact that Annapurna was

admitted at Adhar Hospital, Sangali, he went to see the

deceased in the Hospital on 19.07.2000 and when he

visited the said Hospital one Balasaheb Desai was also

present. It is evidence of PW.2 that while he was talking

with Annapurna, she expressed her desire to execute the

Will. Accordingly, the said Balasaheb Desai went and

brought one Advocate by name Umesh R. Jadhav to the

Hospital and at that time Annapurna gave her property

documents to the said Advocate Umesh R. Jadhav and

requested him to prepare the Will as per her wish.

Accordingly the said Advocate Umesh R. Jadhav had taken

the said documents and went out of the Hospital and came

back after two hours after preparing the Will. It is

evidence of PW.2 that the Advocate Umesh R. Jadhav had

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read the contents of the Will and thereafter, the deceased

Annapurna put her thumb impression and then PW.2 put

his signature. This is the evidence given by PW.2. Here

the suspicious circumstances is that the deceased

Annapurna was admitted to Hospital in ICU and as per the

evidence on record, it is revealed that Annapurna was

given ventilator and was provided oxygen by external

support. When this being the condition of Annapurna, how

the deceased Annapurna has given instructions to prepare

the Will, is a question to be considered by this Court and

in this condition it is highly impossible to believe that the

deceased Annapurna has given instructions to prepare the

Will. It is an admitted fact that within a period of five

days from the date of alleged execution of Will, Annapurna

died. Further it is highly improbable circumstances that

when the deceased Annapurna was admitted to the

hospital by the plaintiff, she has also taken the entire land

documents along with her to the hospital and in the

hospital, she gave the said documents to the Advocate

Umesh R. Jadhav, this is highly improbable circumstances

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as deposed by the plaintiff and PW-2. The plaintiff/PW.1

while being examined had deposed that the deceased was

under his care and custody and when the health condition

of the deceased Annapurna deteriorated, he had admitted

Annapurna to Adhar Hospital, Sangali and the deceased

was in ICU, PW.2 is the attesting witness and one

Advocate, came to the Hospital and prepared the Will.

This is how the Will was prepared as deposed by the

plaintiff and the same is tried to be supported by PW.2.

32. But considering the circumstances that health

condition of Annapurna had deteriorated and she was

under external oxygen support, drips were injected to her

veins and was under ventilator, under such condition, is it

possible for Annapurna to give instructions for preparing

the Will, is the question to be considered. Further there is

no signature of the deceased found on the Will, but as per

the evidence of PWs.1 and 2, the thumb impression of the

deceased was taken on the Will. The plaintiff admitted

that the deceased Annapurna knows reading and writing

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and used to make signature. PW.2 had admitted in the

cross examination that the daughter of plaintiff was

present in the ICU along with Balasaheb Desai during the

preparation and execution of the Will. This proves the

active participation of plaintiff in making the Will through

his daughter. Therefore, on these two circumstances that

the deceased was in ICU with the support of external

oxygen and drips was injected and was on ventilator,

hence it is highly improbable to believe that the deceased

has given instructions for preparation of Will.

33. It is the case of the plaintiff that the Doctor,

who had examined Annapurna in ICU had given the

certificate as per Ex.P5(c) that Annapurna was in good

state of mental condition to give instructions for

preparation of Will, but the said Doctor has not been

examined. Examination of the Doctor is very much

necessary, not because that he has witnessed the

execution of Will, but to state in what condition Annapurna

was in ICU, to ascertain whether she was in good state of

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mind and was able to speak to give instructions and also

why the deceased put thumb impression but not made

signature, for this purpose the evidence of Doctor ought to

have been necessary, but the plaintiff has not examined

the Doctor. Therefore, the certificate given by the Doctor

as per Ex.P5(c) cannot be believed for want of

corroboration by the Doctor. But the First Appellate Court

has committed error in believing Ex.P5(c) certificate,

accompanied with the Will. Therefore, mere production of

certificate Ex.P.5(c) is not sufficient, but Doctor ought to

have been examined before the Court, to prove the mental

status and health condition of the deceased, whether she

was able to give instructions for preparation of the Will. In

this regard, the plaintiff being propounder has failed to

prove the execution of Will.

34. The Will is solemn document. The intention of

the testator to execute the Will shall have to be proved

beyond reasonable doubt for the reason that by a

document of Will property is conveyed to the propounder.

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The testator is in the abode of God. He cannot come to

the living world to depose about his Will. Therefore, the

propounder must prove execution of Will and intention of

testator to Will away the property by removing all

suspicious circumstances. Just because the legal

requirements are complied with as per Section 63 of the

Indian Succession Act and Section 68 of the Indian

Evidence Act, it is not sufficient to hold that execution of

Will is proved. Thus compliance of legal requirements is

only primary step and whatever suspicious circumstances

have to be removed. All these can be done by the

principle of applying the theory beyond reasonable doubt.

Also intention on the part of the testator to bequeath the

property in favour of propounder can be proved by the

theory of beyond reasonable doubt. Therefore, it is

incumbent upon the propounder of the Will shall have to

prove that the testator had intention to bequeath the

property with all his consciousness. It is the burden on

the propounder of Will to prove that at the time of

execution of Will the testator was in sound state of mental

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health - even though the testator may be suffering from

some diseases physically. Then also the burden is on the

propounder to prove as to why the natural legal heirs are

deviated while executing the Will. Therefore, upon

following the principle of law laid down as above stated,

considering the facts, circumstances and evidence in this

case, though the plaintiff has proved compliance with the

legal requirements while executing the Will, but has failed

to remove the suspicious circumstances clouded while

executing the Will.

35. The First Appellate Court has just swayed away

upon compliance with legal requirement, which is brought

during the course of evidence by PW.2, by holding that

legal requirements as per Section 63 of the Indian

Succession Act and 68 of the Indian Evidence Act, the Will

is proved. Just by compliance of legal requirements, it

cannot be said that Will is proved. The other surrounding

circumstances, which are suspicious in nature ought to

have been removed by the plaintiff, but upon considering

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and appreciating the evidence on record, it is found that

plaintiff has failed to remove all these suspicious

circumstances in the preparation of the Will.

36. Upon considering the evidence of plaintiff/PW.1

that deceased Annapurna was suffering from a lot of pain,

the functioning of Kidney of Annapurna were failed and

thus she was admitted to ICU and under ventilation she

was kept on saline and oxygen was externally given, when

this being the health condition revealed and when the

deceased was in ICU, it is highly improbable to believe

that the deceased has given instructions for preparation of

the Will. This is one of the circumstances, to hold that the

Will is not genuine one.

37. Further the other circumstances, is that

deceased Annapurna had handed over the documents

pertaining to the suit schedule land to the Advocate

Umesh R. Jadhav for preparation of the Will. When

Annapurna was admitted to the Hospital in ICU, it is highly

impossible to believe that she has also taken the

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documents pertaining to the suit schedule lands along with

her to the Hospital. While admitting a person in the

Hospital, the paramount consideration would be to give

attention to the patient, but not taking property

documents to the Hospital. It is also one of the

circumstances, to disbelieve the execution of the Will.

38. Ex.P5(c) is the certificate issued by the Doctor

annexed to the Will, but Doctor is not examined. Under

these facts and circumstances of the case, without

corroboration form the evidence of the Doctor, the

certificate Ex.P5(c) cannot be believed. But the First

Appellate Court has not at all considered these aspects

and has not at all made appreciation of evidence in this

regard, resulting into perverse approach by the First

Appellate Court. It is claimed by the plaintiff that he was

not present in ICU, but was outside the Hospital, when

Annapurna was giving instructions for preparation of the

Will. Therefore, in this regard it is proved that the plaintiff

has played a dominant role in the process of making of

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Will. Even though the Will is stated to have been

executed, but for the reasons above discussed and while

appreciating the evidence on record, it is proved that

execution of Will is not believable one. Upon considering

all these scenarios in the alleged preparation of Will as

pleaded and deposed by the plaintiff and PW-2, it is fully

under the suspicious circumstances. When Annapurna

requested Balasaheb Desai, he had gone out of the

Hospital and brought the Advocate, and the said Advocate

had prepared the Will. Then the question is who paid

professional fees to the said Advocate for preparation of

the Will, for which the plaintiff stated that he has not paid

professional fees to the Advocate and also expressed

ignorance as to who has paid professional fees. Hence in

these circumstances, certainly the deceased Annapurna

could not pay the professional fees to the Advocate for the

preparation of Will. Even the plaintiff might have stated

that after some time, he might have paid the fees, but

that is also not stated in the evidence. But during the

course of cross-examination of PW.2 it is revealed that the

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daughter of plaintiff was present in the ICU, at the time of

preparation of Will. Therefore, it is proved that there is

active participation of the plaintiff in the process of making

the Will, though he was outside the hospital, but through

his daughter. Hence appreciating all these circumstances,

it is proved that the Will is found to be not a genuine one

and not executed by Annapurna as it is thickly clouded

with suspicious circumstances.

39. The deceased Annapurna was suffering from so

many ailments, when she was admitted to ICU in the

hospital and from the date of the alleged execution of Will

within five days, she died. Before that the deceased

Annapurna was under ventilation and was given oxygen

through external support as her kidney functioning had

failed. Therefore, under such critical health condition of

Annapurna, it is highly unbelievable fact that deceased

had taken property documents to hospital and given

instructions for preparation of the Will and executed the

Will. These evidences are not at all appreciated by the

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First Appellate Court. Therefore, the approach of the First

Appellate Court is found to be perverse in nature.

40. Further though it is the pleading and evidence

of PW.1 that Annapurna was admitted in Adhar Hospital at

Sangali and then at Waneless Hospital at Miraj, during last

days of deceased Annapurna, but the plaintiff has not

produced any medical documentary evidence to prove that

the deceased was admitted in the Hospitals at Sangali and

Miraj. It is the case of the plaintiff that he was looking

after the deceased Annapurna during her last days and

had admitted the deceased to the Hospital at Sangali and

Miraj, but the plaintiff has not at all produced any medical

evidence in this regard to prove that the deceased was

admitted in the Hospital. From the evidence of PW.2, it is

proved that the deceased was living in Bhoj Village and

the plaintiff is not resident of Bhoj Village, but he is

residing in Ingali Village. Therefore, the plaintiff has not

proved that the deceased was residing along with plaintiff

during her last days and plaintiff admitted her to the

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hospital as above stated. Therefore, upon appreciating

the evidence on record all these circumstances, it is highly

unbelievable that the deceased executed Will in favour of

the plaintiff. This is rightly considered by the Trial Court

disbelieving the case of the plaintiff and rightly dismissed

the suit. But the First Appellate Court has not considered

these aspects and only on the ground that legal

requirements are complied with and on that reason only

reversed the judgment and decree passed by the Trial

Court, which is not correct approach and it amounts to

perverse in nature. Therefore, the judgment and decree

passed by the Trial Court requires to be confirmed by

setting aside the judgment and decree passed by the First

Appellate Court.

41. It is the case of the plaintiff that the deceased

was admitted to Adhar hospital at Sangali, wherein the

deceased has instructed and executed the Will, later on at

Wanless hospital at Miraj - the deceased died within five

days from the date of alleged executed of the Will, but the
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plaintiff has not produced any medical documentary

evidence proving the deceased was admitted to the

Hospitals at Sangali and Miraj. But the only document

produced is the Doctor's certificate as per Ex.P5(c) stated

to have been issued by the Doctor/Medical Officer at Adhar

hospital, Sangali. Mere production of the certificate is not

sufficient in the absence of providing medical treatment at

Adhar hospital, Sangali. Therefore, in this back drop

examination of Doctor, who has issued certificate Ex.P5(c)

assumes significance to prove the physical and mental

health condition of the deceased. Therefore, non-

examination of the Doctor, who has issued the certificate

Ex.P5(c) is fatal to the plaintiffs case, hence proof of

physical and mental health condition is necessary in the

case. As depicted by the plaintiff that there ought to have

been proof by producing medical documentary evidence

for having admitted the deceased in the hospital, as

discussed above, but not produced. Therefore,

examination of the Doctor in support of issuance of the

certificate as per Ex.P5(c) is inevitable. Thus, in the

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absence of non-examination of Doctor in the above said

circumstances, it is doubtful about execution of Will in the

Hospital as projected by the plaintiff. Therefore, execution

of the Will is not conclusively proved by the plaintiff.

Hence, the plaintiff has failed to prove the execution of the

Will. Accordingly, for the aforesaid reasonings, I answer

point No.1 in the 'negative'.

42. Accordingly, I answer substantial question of

law No.1 in the negative by holding that ‘just believing the

certificate of the Doctor holding that the Will is proved’, is

not acceptable one and accordingly execution of the Will is

not proved.

43. Substantial question of law No.2 is answered in

the negative holding that the Trial Court has rightly

appreciated the evidence on record, but the First Appellate

Court has not rightly appreciated the evidence on record.

Hence the First Appellate Court is not justified in reversing

the judgment and decree passed by the Trial Court.

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Hence, I proceed to pass the following:-

ORDER

a. This Regular Second Appeal is allowed.

b. The judgment and decree dated 12.11.2009

passed in R.A.No.2/2007 by the Fast Track

Court I, Chikodi, is set aside.

c. The judgment and decree dated 30.11.2006

in O.S.No.105/2000 by the Civil Judge

(Senior Division), Chikodi, stands confirmed.

d. Registry is directed to transmit the Trial

Court Records forthwith.

e. Draw the decree accordingly.

f. No order as to costs.

Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE

NG*
CT: RK