Case: M.B. Ramesh (D) By Lrs Vs. K.M. Veeraje Urs (D) By Lrs.

2. The respondent no.1 and another, the original plaintiffs are the sons of a cousin of one Smt. Nagammanni who died on 21.11.1970. It is claimed by them that she left behind a will executed way back on 24.10.1943, and registered with the Sub-Registrar at Mysore, on 25.10.1943The original plaintiffs claimed that through the said will she has bequeathed her property in their favour. The property referred in the will is her ancestral property. The property of late Smt. Nagammanni consisted of 11 parcels of dry land situated in village Mallinathpuram, and 2 parcels of wet land situated in village Kaggalli, both in taluk Mallavalli in district Mandya, State of Karnatka. Out of these 11 parcels of dry land those at Sl. Nos.2, 5 and 10 (from the list referred in the plaint) were not covered in the will3. It was the case of the original plaintiffs that they were in possession of these parcels of land, and their possession was sought to be disturbed by the appellant herein (original defendant no.1 and others). Smt. Nagammanni is the widow of one C. Basavaraje Urs, whereas the appellant is the son of this C. Basavaraje Urs from his second wife. After the death of Smt. Nagammanni, the plaintiffs, as well as the defendants, applied for entering their names in the revenue records as the owners of the concerned lands. The Mutation Registrar however passed an order on 29.3.1971, in favour of the defendants. The plaintiffs preferred an appeal against the same to the Assistant Commissioner Mandya. However, when they found that taking advantage of the said order the defendant No 1 was trying to disturb their possession over the suit properties, they were required to file a suit, on the basis of the will, which they filed in the Court of Principal Civil Judge at Mandya, and which was numbered as Suit No.32 of 1975. They prayed for a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with their possession thereof. Alternatively, they prayed that in case it is held that they were not in possession, a decree be granted for recovery of possession of the property with future mesne profits4. The suit was contested by the defendants, the appellant herein, by contending that Smt. Nagammanni was not the owner of the suit property, and in any case the will relied upon by the respondents was not a valid one. It was additionally submitted that the relations of Smt. Nagammanni and the appellant were cordial, and the claimed will must have been revoked, which revocation was being suppressed by the respondents5. The learned trial judge raised in all ten issues. The first out of these issues was whether the plaintiffs proved that the suit property rightly belonged to Smt. Nagammanni, and the learned Judge answered it in the affirmative. This finding has not been disturbed by the fist appellate court, nor seriously contested in the present Civil Appeal also. It is the second issue framed by the trial judge which is the crucial one, namely, whether the plaintiffs prove that Smt. Nagammanni executed a registered will dated 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them6. The plaintiff no.1 (PW-1) examined himself in support of his case. He examined three more witnesses in support, out of whom the second witness P. Basavaraje Urs (PW-2) is the most relevant one. The defendants examined three witnesses though nothing much turns on their evidence. Documentary evidence was also produced by both the parties, which has been considered by the courts below. The respondent no.1/plaintiff identified the signatures made by Smt. Nagammanni at two different places on the will (exhibit P-3). Those signatures were marked as P-3 (a) and P-3(d). While cross-examining him, the appellant produced two inland letters written by Smt. Nagammanni to claim that their relations had become cordial, but it must also be noted that therein she had claimed her maintenance amount from the appellant. The respondent no.1 identified the signatures of Smt. Nagammanni on those two letters, and they were marked as Exhibits D4 and D5. Theses signatures were clearly comparable with her signatures on the will. This was accepted by the learned trial judge by observing that on a comparison of the signatures I find there is some force in this contention. The signatures tally. This finding of the trial judge is neither disturbed by the first appellate court nor by the High Court7. The next witness on behalf of the respondent no.1/plaintiff was one P. Basavaraje Urs (PW-2). He was working as a Patel (Village Officer) at village Mallinathpuram, in district Mandya, at the relevant time. He is an attesting witness to the will. He produced land revenue receipts containing his signatures, which were marked as Exhibits P7 to P14 and P19. He proved his own signature on the will by comparing it with his signatures on these Exhibits P7 to P14 and P19. He stated in his cross-examination that, apart from him, two other persons were attesting witnesses, namely, M. Mallaraje Urs and Sampat Iyanger. However, by the time his evidence was being recorded in November 1978, both of them had passed away. He stated that he could identify the hand writing and signature of M. Mallaraje Urs. The signature of M. Mallaraje Urs on the will was marked as Exhibit P3 (h). He also identified the signatures of Smt. Nagammanni on the will i.e. P3 (a) and P3 (d). He stated that she signed the will in his presence and he also signed the same in her presence. This part of the evidence of PW1 and PW-2 has remained undisturbed. Thus, it can be safely said that Smt. Nagammanni has executed the will (Exhibit P3) which also bears the signatures of PW-2 P. Basavaraje Urs, and one M. Mallaraje Urs8. The appellants tried to dispute the validity of the will by drawing attention of the Court to various circumstances. They disputed the presence of P. Basavaraje Urs at the time of signing of the will by asking him questions as to when did he come down to Mysore on that day from Mallinathpuram, and what did he do on that date. The learned trial judge, as well as the judge of the first appellate court, has been impressed by some of the discrepancies in this behalf appearing in his statement, and which were highlighted by the appellant. The fact, however, remains that PW-2 was giving his deposition some 35 years subsequent to the execution of the will, and therefore not much credence can be given to such discrepancies in his evidence. It was also submitted on behalf of the appellant that it was not clear as to how and when the will was discovered by the respondents/plaintiffs herein. Further, much emphasis was laid on the fact that when the will was made by Smt. Nagammanni, she was just about 40 years of age, and still described herself in the will as old and infirm. It was also contended that it was surprising that though the will was made some 35 years ago, the respondents/plaintiffs did not know anything about it until the death of Smt. Nagammanni. As far as the writing of the will is concerned, certain doubts were raised by pointing out that the writing was not so very continuous, and the signatures thereon appeared to have been adjusted. The evidence of PW-2 was also sought to be assailed by contending that he was an interested witness. It was pointed out, for that purpose, that in an earlier suit, arising out of a mortgage of a property of Smt. Nagammanni, he had feigned ignorance about the place where the will was written or the persons who were present at that time9. As far as this objection is concerned, it must be stated and cannot be denied that in the earlier suit, PW2 had very much deposed that he was an attesting witness to the will. Similarly, about Smt. Nagammani describing herself as an old person, it must be noted that what she had stated was that she was getting old. Such a statement by a person will always depend upon the perception of the person concerned about the condition of his or her health. It appears that, in view of her strained relations with her husband, she wanted her property to be protected, and wanted to make a provision that it should devolve on her relatives. It is another matter that she lived long, thereafter. Similarly, there is no substance in the plea of the defendant No 1 that his relations with Smt. Nagammani had become cordial and she must have revoked the will. If that was so, he would have surely produced such a document of revocation. Similarly, no issue can be made out of the production and reliance on the will, some 35 years subsequent to its execution. There is no dispute about Smt. Nagammanis signature on the will, and her wishes are clear. It is only when the properties bequeathed under the will had to be protected, that the will was required to be produced and relied upon. A will is required to be acted upon, only after the testator passes away, and in the instant case immediately when the occasion arose, the will was produced and relied upon. In the circumstances, we do not find much force in any of these objections10. As against these discrepancies in the evidence of PW-2, it was emphasized on behalf of the respondent no.1/plaintiff that C. Basavaraje Urs, the husband of Smt. Nagammanni had earlier filed a suit against her, claiming these very properties as his own properties and that suit came to be dismissed, which finding was confirmed in appeal. It was also pointed out that the appellant was the son of C. Basavaraje Urs from his second wife, and was required to pay maintenance to Smt. Nagammanni, as required by a Court order. It was also submitted by the plaintiffs that the will was a document which was more than 30 years old, and under Section 90 of Evidence Act, the Court is expected to presume that the signature in every part of the document is in the hand writing of the person concerned, and that the document was duly executed11. The trial court accepted the submissions on behalf of the appellant herein, and held that the plaintiffs had failed to prove the will since it had not come in the evidence of PW-2 that Smt. Nagammanni had executed the will in the presence of the second witness M. Mallaraje Urs, or that this M. Mallaraje Urs had also signed the will in her presence. Thus, the requirement of Section 63 (c) of the Indian Succession Act, 1925 (Succession Act for short) was not fulfilled viz. that two or more witnesses have to see the testator sign or affix his mark to the will, and each of the witnesses have also to sign the will in the presence of the testator. The Court, therefore, decided issue no.2 against the plaintiffs and dismissed the suit. The first appellate Court also took the same view in Regular Appeal No. 30 of 1989, and dismissed the appeal filed by the respondents herein12. The respondent/plaintiff thereafter filed a second appeal bearing R.S.A No. 546 of 1996, wherein, a learned Single Judge of the High Court framed the question of law in the following words:-Whether the concurrent findings of the Appellate Court that the plaintiff have not proved the will is bad in law and the finding in that regard is perverse and contrary to the evidence on record?The learned Single Judge decided the said question of law in favour of the respondents-original plaintiffs by his impugned judgment and order dated 23.1.2004, which has led to the present appeal by special leave.

Reasoning:
we may note that in para 21 of his cross examination, P. Basavaraje Urs has in terms stated, Mr. Mallaraje Urs and Smt. Nagammanni, myself and one Sampat Iyanger were present while writing the will. One Mr. Narayanmurti was also present. In para 22 he has stated that Narayanmurti had written Exhibit 3 (will) in his own handwriting continuously. The fact that M.Mallaraje Urs was present at the time of execution of the will is not contested by the defendants by putting it to PW2 that M. Mallaraje Urs was not present when the will was executed. As held by a Division Bench of the Calcutta High Court in a matter concerning a will, in para 10 of A.E.G. Carapiet Vs. A.Y. Derderian reported in [AIR 1961 Calcutta 359],….Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justiceAs noted earlier the will was executed on 24.10.1943 in the office of the advocate Shri Subha Rao situated at Mysore, and was registered on the very next day at Mysore. The fact that the will is signed by Smt. Nagammanni in the presence of PW2 on 24.10.1943 has been proved, that PW2 signed in her presence has also been proved. Can the signing of the will by Smt. Nagammanni in the presence of M. Mallaraje Urs and his signing in her presence as well not be inferred from the above facts on record? In our view, in the facts of the present case, the omission on the part of PW2 to specifically state that the signature of M. Mallaraje Urs on the will (which he identified) was placed in the presence of Smt. Nagammani, and that her signature (which he identified) was also placed in the presence of M. Mallaraje Urs, can be said to be a facet of not recollecting about the same. This deficiency can be taken care of by looking to the other evidence of attendant circumstances placed on record, which is permissible under Section 71 of the Evidence Act. In view of the above factual and legal position, we do hold that the plaintiffs/respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue no.2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him.