# SHIVAKUMAR & ORS v. SHARANABASAPPA & ORS

- **Citation:** [2020] 6 S.C.R. 666
- **Court:** Supreme Court of India
- **Decided:** 2020-04-24
- **Case number:** Civil Appeal No. 6076 of 2009
- **Bench:** A. M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shivakumar-ors-v-sharanabasappa-ors-34602
- **Pages:** 53

## Headnote

Will - Genuineness of - Plaintiff-Appellants filed a civil suit
for declaration and injunction that they had acquired ownership
rights in the suit properties on the basis of a Will dated 20.05.1991
executed by one 'S' and that the Trust created by defendants in
relation to the suit properties was illegal and void - The defendants
questioned the genuineness of the alleged Will - The Trial Court
decided the principal issue related to the Will in favour of the
plaintiffs - However, the High Court reversed the decision of Trial
Court on the principal issue relating to the genuineness of the Will
- On appeal, held: In the instant case, there were unnatural and
unusual features in the document/Will in question - Different sheets
of paper had been used in preparation of Will; placement of the
signatures of the testator was at least at two places beyond normal
distance from the last typed matter; in making of three signatures,
at least two different pens were used; the front facing pages number
1,3 and 5 carried the signatures of the testator, the backside pages,
i.e. pages 2 and 4 were unsigned - Further, several blank spaces
were found in relation to the particulars of the properties and even
some of the properties were not correctly described - There was
recital in the document of a past event (about vacating of the shop
by tenant) in the manner that such event shall happen in future - In
the opening passage of the document, the recital was to the effect
that the testator was making Will because so many accidents do
happen - The fact remain that testator died in an accident on
20.05.1994 and Will was made on 20.05.1991 - That apart, the
plaintiffs never took steps to get the statement of the person, who
was otherwise referred to by all the material witnesses as being the
person before whom the document was allegedly opened - The
unexplained, unusual and abnormal features pertaining to the
document only lead to a logical deduction that the document in
[2020] 6 S.C.R. 666
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question was prepared after the demise of the testator 'S' with use
of blank signed papers that came in possession of the propounders
and their associates - The High Court was right in reversing the
decision of the Trial Court and in holding that the contested Will
was not a genuine document.
Code of Civil Procedure, 1908 - Or.XLI, rr.23, 23A, 24 and
25 - Order of remand by the Appellate Court - Held: A conjoint
reading of Rules 23, 23A and 24 of Or.XLI brings forth the scope
as also contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper course for
an Appellate Court is to follow the mandate of r.24 of Or.XLI CPC
and to determine the suit finally - It is only in such cases where the
decree in challenge is reversed in appeal and re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding case.
Dismissing the appeal, the Court
HELD: 1. The High Court felt dissatisfied with the
document itself and found no explanation on record about
numerous unnatural circumstances dilated upon and discussed
by it in some of the passages extracted hereinbefore. Having
examined the material placed on record, in view of this Court,
the observations and findings of the High Court remain
unexceptionable. [Para 14][706-G]
2. At least four unusual features of the document in question
are evident on the face of the record. To recapitulate, the disturbing
unusual features of the document in question are that: (i) it is
typewritten on 3 different sheets of paper; (ii) the placement of
signatures of the testator is not of uniformity and excessive space
is seen between the typewritten contents and the signatures on
page number 1 and page number 5; (iii) different pens have been
used for signatures on different pages with ink pen having been
used for first and third signatures (on page number 1 and page
number 5) and ballpoint pen having been used for the second
signature (on p

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SUPREME COURT REPORTS
[2020] 6 S.C.R.
SHIVAKUMAR & ORS.
v.
SHARANABASAPPA & ORS.
(Civil Appeal No. 6076 of 2009)
APRIL 24, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Will - Genuineness of - Plaintiff-Appellants filed a civil suit
for declaration and injunction that they had acquired ownership
rights in the suit properties on the basis of a Will dated 20.05.1991
executed by one 'S' and that the Trust created by defendants in
relation to the suit properties was illegal and void - The defendants
questioned the genuineness of the alleged Will - The Trial Court
decided the principal issue related to the Will in favour of the
plaintiffs - However, the High Court reversed the decision of Trial
Court on the principal issue relating to the genuineness of the Will
- On appeal, held: In the instant case, there were unnatural and
unusual features in the document/Will in question - Different sheets
of paper had been used in preparation of Will; placement of the
signatures of the testator was at least at two places beyond normal
distance from the last typed matter; in making of three signatures,
at least two different pens were used; the front facing pages number
1,3 and 5 carried the signatures of the testator, the backside pages,
i.e. pages 2 and 4 were unsigned - Further, several blank spaces
were found in relation to the particulars of the properties and even
some of the properties were not correctly described - There was
recital in the document of a past event (about vacating of the shop
by tenant) in the manner that such event shall happen in future - In
the opening passage of the document, the recital was to the effect
that the testator was making Will because so many accidents do
happen - The fact remain that testator died in an accident on
20.05.1994 and Will was made on 20.05.1991 - That apart, the
plaintiffs never took steps to get the statement of the person, who
was otherwise referred to by all the material witnesses as being the
person before whom the document was allegedly opened - The
unexplained, unusual and abnormal features pertaining to the
document only lead to a logical deduction that the document in
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question was prepared after the demise of the testator 'S' with use
of blank signed papers that came in possession of the propounders
and their associates - The High Court was right in reversing the
decision of the Trial Court and in holding that the contested Will
was not a genuine document.
Code of Civil Procedure, 1908 - Or.XLI, rr.23, 23A, 24 and
25 - Order of remand by the Appellate Court - Held: A conjoint
reading of Rules 23, 23A and 24 of Or.XLI brings forth the scope
as also contours of the powers of remand that when the available
evidence is sufficient to dispose of the matter, the proper course for
an Appellate Court is to follow the mandate of r.24 of Or.XLI CPC
and to determine the suit finally - It is only in such cases where the
decree in challenge is reversed in appeal and re-trial is considered
necessary that the Appellate Court shall adopt the course of
remanding case.
Dismissing the appeal, the Court
HELD: 1. The High Court felt dissatisfied with the
document itself and found no explanation on record about
numerous unnatural circumstances dilated upon and discussed
by it in some of the passages extracted hereinbefore. Having
examined the material placed on record, in view of this Court,
the observations and findings of the High Court remain
unexceptionable. [Para 14][706-G]
2. At least four unusual features of the document in question
are evident on the face of the record. To recapitulate, the disturbing
unusual features of the document in question are that: (i) it is
typewritten on 3 different sheets of paper; (ii) the placement of
signatures of the testator is not of uniformity and excessive space
is seen between the typewritten contents and the signatures on
page number 1 and page number 5; (iii) different pens have been
used for signatures on different pages with ink pen having been
used for first and third signatures (on page number 1 and page
number 5) and ballpoint pen having been used for the second
signature (on page number 3); and (iv) all the typewritten pages
do not carry the signatures of the testator, with there being no
signature on page number 2 and page number 4. It does not
require any great deal of elaboration that in the ordinary, normal
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
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and usual course, such a typewritten document is expected to be
on the sheets of paper drawn from the same stack; there would
be reasonable uniformity in placement of the signatures running
through the document and every signature would be placed
alongside or at a reasonable distance from the contents; a single
pen or instrument would be used for signing at all places; and,
ordinarily, a maker of the Will would not leave such ambiguity in
expression of his intention as would arise by his signing 3 pages
and not signing 2 other pages of the same document. In fact, in
the normal and ordinary course of dealing, the maker of a Will is
least expected to leave any page of the document unsigned.
Although existence of some such unusual features (as noticed
above) cannot be ruled out during the course of typing and signing
of the document but when all such unusual features combine
together, the document becomes too vulnerable and cannot be
readily accepted as a genuine document. [Para 15.5.][709-G-H;
710-A-E]
3. The document in question carries several such features
of unusualness which travel into the realm of abnormalities. The
matter does not rest with such abnormalities only. These abnormal
features get confounded with other unusual features available in
the contents of this document. Indisputably, several blank spaces
are found in relation to the particulars of the properties and even
some of the properties are not correctly described. Yet further,
the dates mentioned in the document with reference to Hindi
Calendar and English Calendar do not match. Yet another curious
feature is the recital in the document of a past event (about
vacating of the shop by the tenant in the year 1990) in the manner
that such event shall happen in future. Therefore, the
abnormalities relating to paper, pen and signature get magnified
with blank spaces in the document as also with incorrect and
inexplicable recitals. [Para 16][710-F-H; 711-D]
4. The problems relating to the probative value of the
document Ex. P.4 do not end with the aforementioned abnormal
features and curious factors. A close examination of this document
takes us from abnormalities to mysteries too. In the opening
passage of this document, the recital is to the effect that the
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testator was making the Will because so many accidents do
happen. The fact remains that the testator and his wife both died
in the car accident on 20.05.1994 but, it would require travelling
into an entirely mystical region to accept that while making the
Will on 20.05.1991, the testator had the premonition that he would
perish in a vehicular accident. [Para 17][711-B-C]
5. Much emphasis is laid on behalf of the appellants on the
submissions that execution of the Will in accordance with the
requirements of Section 63 of the Succession Act and Section 68
of the Evidence Act has been duly established on record with the
testimony of the attesting witnesses as also the witness with whom
the Will along with the handwritten draft of the Will had been
deposited by the testator. The submissions so made on behalf of
the appellants cannot be accepted for the reason that mere proof
of the document in accordance with the requirements of Section
68 of the Evidence Act is not final and conclusive for acceptance
of a document as a Will. When suspicious circumstances exist
and the suspicions have not been removed, the document in
question cannot be accepted as a Will. [Para 20][712-D-F]
6. Having dilated on various major features which,
individually and cumulatively, lead only to the conclusion that the
document in question cannot be accepted to be the last Will of
testator, it does not appear necessary to discuss several other
shortcomings in the case of the plaintiffs, including various other
factors like that the plaintiffs never took steps to get the
statement of the said Swamiji recorded, who was otherwise
referred to by all the material witnesses as being the person before
whom the document was allegedly opened. [Para 23][713-E-G]
7. In view of this Court, the document in question falls flat
at the very first question indicated in the case of H. Venkatachala
Iyenger that is, as to whether the testator signed the Will in
question. The answer to this question is only in the negative.
This is apart from the fact that the document in question,
propounded as a Will, is non-compliant with the requirements of
clause (b) of Section 63 of the Succession Act. [Para 24]
[713-G-H]
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
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8. A conjoint reading of Rules 23, 23A and 24 of Order XLI
brings forth the scope as also contours of the powers of remand
that when the available evidence is sufficient to dispose of the
matter, the proper course for an Appellate Court is to follow the
mandate of Rule 24 of Order XLI CPC and to determine the suit
finally. It is only in such cases where the decree in challenge is
reversed in appeal and a re-trial is considered necessary that the
Appellate Court shall adopt the course of remanding the case. It
remains trite that order of remand is not to be passed in a routine
manner because an unwarranted order of remand merely
elongates the life of the litigation without serving the cause of
justice. An order of remand only on the ground that the points
touching the appreciation of evidence were not dealt with by the
Trial Court may not be considered proper in a given case because
the First Appellate Court itself is possessed of jurisdiction to
enter into facts and appreciate the evidence. There could, of
course, be several eventualities which may justify an order of
remand or where remand would be rather necessary depending
on the facts and the given set of circumstances of a case. [Para
25.4][716-B-E]
H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors.
AIR 1959 SC 443 : [1959] Suppl. SCR 426; P.P.K.
Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and
Ors. (1995) Supp 2 SCC 664 : [1995] 2 SCR 585; K.
Laxmanan v. Thekkayil Padmini and Ors. : (2009) 1
SCC 354 : [2008] 16 SCR 1117; Smt. Jaswant Kaur v.
Smt. Amrit Kaur and Ors. (1977) 1 SCC : [1977] 1
SCR 925 - relied on.
Smt. Indu Bala Bose and Ors. v. Manindra Chandra
Bose and Anr. (1982) 1 SCC 20 : [1982] 1 SCR 1188;
Uma Devi Nambiar and Ors. v. T.C. Sidhan (2004) 2
SCC 321 : [2003] 6 Suppl. SCR 637; Mahesh Kumar
(dead) by LRs v. Vinod Kumar and Ors (2012) 4 SCC
387; Mohan Kumar v. State of Madhya Pradesh and
Ors. (2017) 4 SCC 92 : [2017] 2 SCR 889; Shashi
Kumar Banerjee and Ors. v. Subodh Kumar Banerjee
and Ors. AIR 1964 SC 529 - referred to.
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Case Law Reference
[1982] 1 SCR 1188
referred to
Para 6.1
[1977] 1 SCR 925
relied on
Para 6.1
[1959] Suppl. SCR 426
relied on
Para 7
[1982] 1 SCR 1188
referred to
Para 7.1
[1995] 2 SCR 585
relied on
Para 7.1
[2003] 6 Suppl. SCR 637
referred to
Para 7.1
(2012) 4 SCC 387
referred to
Para 7.2
[2017] 2 SCR 889
referred to
Para 7.3
[2008] 16 SCR 1117
relied on
Para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6076
of 2009.
From the Judgment and Order dated 26.10.2007 of the High Court
of Karnataka at Bangalore in RFA No. 910 of 2001.
K. Radhakrishnan, Sr. Adv., M/s. Lawyer S. Knit & Co., Adv. for
the Appellants.
Rajesh Mahale, Ms. Anjana Chandrashekar, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
PRELIMINARY AND BRIEF OUTLINE
1. By way of this appeal, the plaintiff-appellants have challenged
the judgment and decree dated 26.10.2007 passed by the High Court of
Karnataka at Bangalore in Regular First Appeal No. 910 of 2001
whereby, the High Court reversed the judgment and decree dated
12.09.2001 passed by the Court of Civil Judge (Senior Division), Koppal
in Original Civil Suit No. 56 of 1994.
1.1 The civil suit aforesaid was filed by the plaintiff-appellants for
declaration and injunction, essentially with the submissions that they
had acquired ownership rights in the suit properties (described in
Schedules A to D attached to the plaint) on the basis of a Will dated
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20.05.1991 executed by the owner of the said properties Sri Sangappa
son of Pampanna Shettar of Koppal; and that a trust created by the
defendants on 28.05.1994, in the name "Shri Sangappa Pampanna
Gadagshettar Trust, Koppal" in relation to the suit properties, was illegal,
void and not binding on the plaintiffs. The contesting defendants i.e.,
defendant Nos. 1 to 5 refuted the claim so made by the plaintiffs while
questioning the genuineness of the alleged Will dated 20.05.1991. The
defendant No. 7, one of the erstwhile trustees of the said trust, however,
admitted and endorsed the claim of the plaintiffs.
1.2 After framing necessary issues and after taking the oral and
documentary evidence adduced by the parties, the Trial Court, in its
judgment dated 12.09.2001, decided the principal issue relating to the
said Will dated 20.05.1991 in favour of the plaintiffs and, while also
returning its findings on other necessary issues in favour of the plaintiffs,
proceeded to decree the suit with declaration that the trust created by
the defendants on 28.05.1994 was not binding on the plaintiffs, particularly
in relation to the suit properties; and that the plaintiffs were owners of
the suit properties as claimed. The Trial Court also issued injunction against
defendant Nos. 1 to 5 that they shall not interfere with the plaintiffs'
peaceful possession and enjoyment of the suit properties.
1.3 The judgment and decree so passed by the Trial Court were
questioned by the contesting defendants in the High Court by way of the
said first appeal. The High Court, in its impugned judgment dated
26.10.2007 proceeded to allow the appeal while reversing the decision
of Trial Court on the principal issue relating to the genuineness of the
Will in question. The High Court found several unexplained suspicious
circumstances as also discrepancies in the Will in question and held that
the alleged Will dated 20.05.1991 was not a genuine document. Being
aggrieved, the plaintiffs have preferred the instant appeal.
THE LEAD PERSONS, PARTIES, WITNESSES AND
DOCUMENTS AS ALSO THE PROPERTIES INVOLVED
2. It is but apparent that genuineness of the Will dated 20.05.1991,
said to have been executed by Sri Sangappa son of Pampanna Shettar
of Koppal, allegedly bequeathing the suit properties to the plaintiffs, is in
question in this case.
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3. For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, we may take note of
the principal persons involved in the matter with their respective roles as
also the documents and the properties in question as infra:
3.1 The testator of the Will in question:
Late Sri Sangappa son of Pampanna Shettar of Koppal.
He was a businessman and was also the Chairman of Sri
Gavisiddeshwara V.V. Trust, Koppal (which is different than the trust
questioned in the suit). Late Smt. Mahantamma was his wife.
Undisputedly, both the testator and his wife died in a car accident
on 20.05.1994. The testator and his wife did not have any surviving
children, as their children had died in infancy and they were issueless on
the date of their death.
3.2 The plaintiffs (the appellant Nos. 1 to 3 herein):
The plaintiffs S/Sri Shivakumar, Shashidhar and Karibasewaraj,
all sons of Basetteppa, claim to be the legatees under the Will in question.
They are full-brothers and are grand-nephews of the testator's wife.
According to the plaintiffs, they were brought up by the testator and his
wife and they were staying with the testator.
3.3 The contesting defendants (Respondent Nos 1 to 4 herein):
The defendant No. 1 Sri Sharanabasappa son of Pampanna is the
younger brother of the testator; the defendant Nos. 2 and 3 Smt.
Basavannemma and Smt. Siddama are the sisters of the testator; the
defendant No. 4 Sri Pampanna son of Basappa and defendant No. 5 Sri
Siddanna son of Fakirappa are the nephews of the testator.1-2
3.3.1 The defendant Nos. 6 to 8:
The defendant No. 6 Sri Gurushantappa, No. 7 Sri Veerabasappa
and No. 8 Dr. N.S.Gaikwad were joined in the suit for being the members
of the trust created by other defendants, which was questioned by the
plaintiffs. The defendant No. 7 Sri Veerabasappa was said to be a close
1 The defendant No. 2 Smt. Basavannemma expired during the pendency of the suit and
the fact was noted on the cause-title.
2 The defendant No. 4 Sri Pampanna (respondent No. 3 herein) expired during the
pendency of this appeal and his legal representatives were brought on record by the
order dated 30.03.2015.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
[DINESH MAHESHWARI, J.]
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associate of the testator in running Gavisiddeshwar College of which,
the testator was the Chairman of Governing Body. This defendant was
not related to either of the parties; he, however, filed a separate written
statement, admitting and endorsing the claim of the plaintiffs.3
3.4 The trust in question: Sri Sangappa Pampanna Gadagshettar
Trust: The defendants created this trust on 28.05.1994 (in the name of
the testator) with inclusion of the properties in question, to pursue
philanthropic and charitable purposes. The creation of this trust was
challenged in the suit.
3.5 Special mention: Sri Gavisiddeshwara Swami, Koppal
(Swamiji): According to the plaintiffs, the testator was a philanthropic
and a devotee of Sri Gavisiddeshwara Swami, Koppal4; and the contested
Will was opened in the presence of Swamiji. However, Swamiji was not
examined as a witness in this case.
3.6 The key witnesses:
PW-1 Sri Basetteppa:
He is father of the plaintiff Nos. 1 to 3. He allegedly used to assist
the testator in his business.
PW-3 Sri Radhakrishnarao and PW-4 Sri Ayyanagowda
Hiregowdar: They are claimed to be the attesting witnesses of the
contested Will. PW-8 Sri Bhusnoormath, Advocate:
He was a friend and advocate of the testator. Allegedly, the testator
handed over the contested Will to him in a sealed cover with the
instructions that the same was to be opened after his death, only in the
presence of Swamiji. The contested Will was allegedly opened after the
sudden demise of the testator and his wife in the presence of Swamiji on
29.05.1994.
3.7 Relevant exhibited documents:
Ex. P.2: Will cancellation deed 26.09.1990 whereby, the testator
cancelled an earlier Will executed by him in the year 1974.
3 The defendant No. 6 Gurushantappa expired on 13.10.2001. He was a trustee of the
trust in question and no substitution was made in his place. The name of defendant No.
7 Veerabasappa was deleted from the array of parties before the High Court on
24.07.2006. The defendant No. 8 has remained on record as respondent No. 5 in this
appeal.
4 Hereinafter also referred to as 'Swamiji'.
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Ex. P.3: Handwritten draft of the Will said to have been prepared
by the testator and kept in the sealed cover with the executed Will.
Ex. P.4: The contested Will dated 20.05.1991.
3.8 Suit properties:
Schedule A: Consisting of the parcels of land in Sy. No. 631 and
Sy. No. 632. These were in the name of the testator's wife as per the
relevant records.
Schedules B, C & D: Consisting of shops and houses; admittedly
they belonged to the testator.5
SUMMARY OF THE PLEADINGS; ISSUES; AND EVIDENCE
4. Having taken note of the persons and the properties involved in
the matter, we may now summarise the pleadings of the parties, the
issues framed by the Trial Court, and the evidence led by the parties for
appreciating the respective findings of the Trial Court and the High Court.
The plaint:
4.1. The plaintiff-appellants filed the suit aforesaid seeking
declaration and injunction with the averments, inter alia, that Schedule
A to D properties were owned and possessed by the testator Sri
Sangappa Shettar of Koppal; that Schedule A properties, being the parcels
of land, were standing in the name of the testator's wife Mahantamma
but were purchased by him. It was averred that on 20.05.1994, the testator
Sangappa Shettar and his wife died in a car accident on the National
Highway between Hubli-Shiggoan. It was also averred that both of them
died issueless as the children born to them had died in infancy. The
plaintiffs further pointed out the relations of the parties with the testator
and alleged that the testator was earlier joint with his family but, in or
around the year 1964, a partition took place and thereafter, he remained
separate until his demise. The plaintiffs asserted that their mother
Mahadevamma was the sister of the wife of testator; that the testator
Sri Sangappa, out of love and affection, brought up the plaintiffs by keeping
them in his house; that the marriage of the plaintiffs' father (PW-1) was
performed by the testator in the year 1972; and that the deceased testator
also requested the father of the plaintiffs to assist him in the business.
The plaintiffs further averred that the deceased testator executed a Will
5 The testator owned several other properties too that were not mentioned in the Will,
and hence, are not a part of the suit properties.
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
[DINESH MAHESHWARI, J.]
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in the year 1974 but, being disillusioned by the behaviour of legatees, he
cancelled the same on 26.09.1990. The plaintiffs pointed out that the
deceased testator was the Chairman of Sri Gavisiddeshwara V.V. Trust,
Koppal and ardent devotee of Sri Gavisiddeshwara Swamiji of Koppal.
The plaintiffs also averred that the deceased testator changed the name
of the business from Gurukrupa Stores to Gurukrupa Traders.
4.1.1. The plaintiffs further averred that on 20.05.1991, the testator
Sri Sangappa Shettar executed a Will bequeathing Schedule A properties
in favour of the plaintiffs jointly; Schedule B property in favour of the
plaintiff No. 1; Schedule C property in favour of the plaintiff No. 2; and
Schedule D property in favour of the plaintiff No. 3 whereas his remaining
properties were directed to be kept intact and plaintiffs were directed to
apply those properties for charitable purposes. The plaintiffs asserted
that the deed of the Will in question was executed by the deceased
voluntarily and in sound state of mind; and after due execution, he kept
the Will in a sealed cover and deposited the same with Sri Bhusanoormath,
Advocate (PW-8) with directions to open the same after his death in the
presence of Swamiji. According to the plaintiffs, after the death of the
testator Sangappa, PW-8 Bhusanoormath, Advocate intimated about the
Will and the same was opened on 29.05.1994 in the presence of Swamiji.
4.1.2. The plaintiffs maintained that the relationship between the
deceased testator and the defendants was not cordial until his death;
however, the deceased bequeathed a house to defendant no. 3 so that
she may reside therein. The plaintiffs alleged that the defendants were
well aware about the Will executed by the testator and yet created the
trust in question which was, in any case, not of any adverse effect on
the rights of the plaintiffs who had become owners of the suit properties
by virtue of the Will executed by the testator. With these averments, the
plaintiffs sought declaration against the trust so created by the defendants
as also on their ownership rights over the properties in question and
further for injunction against the defendants.
The written statement by defendant No. 1 as adopted by
defendant Nos. 2-6 and 8:
4.2. The contesting defendants refuted the plaint averments and
contended, inter alia, that the suit was not maintainable under the
provisions of Section 92 of the Code of Civil Procedure, 1908 ('CPC');
that the trust in question was not impleaded as party; and that the
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description of suit properties was not correct.
4.2.1. While stating that both Sri Sangappa and his wife died in
the vehicular accident that took place at about 3:15 p.m. on 20.05.1994,
these defendants stated that their dead bodies were identified after about
18 hours; and that the defendant Nos. 1 to 3 performed their last rites.
The allegation regarding partition was denied.
4.2.2. The contesting defendants further denied the assertions
that the plaintiffs were brought up by Sangappa and maintained that the
plaintiffs were living with their father and mother in a rented house. The
contesting defendants alleged that the relations between the deceased
and the father of the plaintiffs were strained; and that father of the
plaintiffs was, in fact, running the business in the name of Sri
Karibasavashwar Trading Co. opposite to the place of business of the
deceased Sangappa that was running in the name of Gurukrupa Traders.
4.2.3. While questioning the Will propounded by the plaintiffs, the
contesting defendants alleged that the plaintiffs are interested in the
properties of the deceased and had forged the Will with ulterior motives.
These defendants denied that the deceased prepared the Will and kept
the same in the sealed cover and deposited it to the Advocate with
instruction to open the same in the presence of Swamiji. The contesting
defendants recounted various suspicious circumstances concerning the
Will in question while alleging, inter alia, that the Will did not bear the
signature of deceased Sangappa; that there was a mismatch in Hindi
Calendar date with that of English Calendar; that the past events were
stated in the Will in such a way that they would happen in future; that
various blanks were left in the description of the properties and even
otherwise, the description was incorrect; that the amount bequeathed to
Rajeshwari and Siddabasemma was not shown; and that the description
of the properties under the Will was inconsistent, incorrect and
incomplete.
4.2.4. The contesting defendants also alleged that after the death
of Sangappa and his wife, they became the Class II heirs of the deceased
Sangappa according to Hindu Succession Act and the trust was created
for implementation of the noble thoughts of the deceased. The contesting
defendants also alleged that the declaration of the trust on 28.05.1994
was prior to the creation of the deed of disputed Will, which was allegedly
opened on 29.05.1994. It was also alleged that the defendant No. 7
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
[DINESH MAHESHWARI, J.]
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started acting against the interest of the trust and he was removed from
the trust by way of a resolution.
The written statement by defendant No. 7- supporting the
plaintiffs
4.3. The defendant No. 7 filed a separate written statement,
essentially admitting the claim of the plaintiffs. This defendant stated
that he was a close associate of the deceased in running Gavisiddeshwar
College; and that he was acquainted with the handwriting of the deceased.
According to this defendant, after the demise of Sri Sangappa, the
advocate met him and informed about the trust with religious and
charitable objects to be formed out of the properties not bequeathed.
Further, one day he stopped for paying respect to Swamiji near the house
of Principal Mallikarjun Somalapur; and the advocate informed Swamiji
about the Will left by the deceased; and Swamiji instructed that the Will
be given effect to, which may give peace to the departed soul.
4.3.1. The defendant No. 7 further stated that the advocate handed
him over a xerox copy of the Will and he was convinced about its
genuineness after examining the same and after enquiring from the
attesting witnesses; and he also found that the draft was in the handwriting
of the deceased. This defendant also referred to the proceedings of the
meeting of the trust on 10.06.1994, where a suggestion was made that
the legatees under the Will should go and establish their claim in the
Court of Law but he asserted that the Will should be given effect to as,
according to him, litigating against the plaintiffs was equivalent to asserting
a false case that the deceased had not executed his Will and therefore,
he disassociated himself from the trust.
Issues
4.4. On the pleadings of the parties, the Trial Court framed the
following issues for determination of the questions involved in the matter:-
"1.Whether the plaintiffs prove that the deceased Sangappa
bequeathed the suit properties in their favour under the will deed
dt: 20.05.1991?
2. Whether the defendants 1 to 5 prove that the Commission
Agency shop business was kept joint in the partition of 1954, held
during the life time of father of deceased Sangappa?
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3. Whether the suit is not maintainable for not impleading Sri
Sangappa Pamapnna Gadadshettar Trust, Koppal, as a party to
the suit?
4. Whether the suit is not properly valued and court fee paid is not
correct?
5. Whether the plaintiffs are entitled for the relief of declaration
that the trust created under the name Sri Sangappa Pampanna
Gandshettar Trust, Koppal, is illegal, void and not binding on them?
6. Whether the plaintiffs 1 to 3 are entitled for the relief of
declaration that they are the joint owners of suit A schedule
properties?
7. Whether the plaintiff No. 1 is entitled for the relief of declaration
that he is the owner of suit B schedule properties?
8. Whether the plaintiff No. 2 is entitled for the relief of declaration
that he is the owner of suit C schedule properties?
9. Whether the plaintiff No. 3 is entitled for the relief of declaration
that she is the owner of suit D schedule properties?
10. Whether the plaintiffs are entitled for the consequential relief
of perpetual injunction against the defendants?
11. Whether the defendants are entitled for exemplary costs of
Rs. 30,000?
12. What decree or order?"
Evidence
4.5. In order to prove their case, the plaintiffs examined as many
as 8 witnesses, the material among them being their father Sri Basetteppa
(PW-1); the two attesting witnesses of the Will in question Sri
Radhakrishnarao (PW-3) and Sri Ayyanagowda Hiregowdar (PW-4);
and the advocate Sri Bhusnoormath (PW-8), to whom the Will was
allegedly handed over in a sealed cover and who opened the cover in the
presence of Swamiji. The plaintiffs also produced 17 documents including
Ex. P.2: the Will cancellation deed 26.09.1990 whereby, the testator
cancelled the earlier Will executed by him in the year 1974; Ex. P.3:
handwritten draft of the Will said to have been prepared by the testator
and kept in the sealed cover with the executed Will; and Ex. P.4: the
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
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contested Will dated 20.05.1991. The defendants examined 2 witnesses
and produced 16 documents.
FINDINGS OF THE TRIAL COURT
5. It is but apparent that the pivotal question in this case had been
as to whether the deceased Sangappa bequeathed the suit properties in
favour of the plaintiffs under the Will dated 20.05.1991? The Trial Court
took up issue Nos. 1 and 6 to 10 together and found that Will in question
was executed in accordance with Section 63 of the Indian Succession
Act, 19256 and the same was proved as per the requirements of Section
68 of the Indian Evidence Act, 18727; and the plaintiffs got the rights as
claimed thereunder. The relevant aspects of the findings of the Trial
Court could be summarised as follows:
5.1. The Trial Court held that all the circumstances establishing
that PW- 8 was handed over the cover containing the Will in question
and its draft and of his opening the same before Swamiji on 29.05.1994
cannot be suspected as he had no personal gain from the plaintiffs and
had no enmity with the defendants.
5.2. The Trial Court further held that PW-3 and PW-4 have given
the details about the Will but it was not necessary that they would
meticulously know the contents of the Will; that both have unanimously
spoken about the deceased Sangappa having shown them the typed Will,
himself having read out the contents, and having signed before them.
The Trial Court yet further observed that neither the Will was drafted
nor it was got typed in the presence of the attesting witnesses and
everything was ready for execution and therefore, any more details
regarding typing of Will of the deceased were not expected. The Trial
Court found that the Will in question was duly identified by the said
witnesses as Ex. P. 4 and the signatures of Sangappa were also identified
as Ex. P. 4 (a), (b) and (c); the signature of PW-3 was at Ex. P.4 (d) and
that of PW-4 at Ex. P. 4 (f). The signatures of other two witnesses were
also identified as Ex. P. 4 (e) and Ex. P. 4 (g). Thus, according to the
Trial Court, the mode of proof as provided under Section 68 of the
Evidence Act stood duly complied with.
5.3. The Trial Court also noticed and recounted various features
which, in its opinion, lend credence to the factum of existence of the Will
6 Hereinafter referred to as 'the Succession Act'.
7 Hereinafter referred to as 'the Evidence Act'.
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in question. The Trial Court observed, inter alia, that the draft of the Will
was prepared in the handwriting of the deceased as Ex. P.3; that PW-1
was a relative of the deceased who had been helping the deceased in
business and was acquainted with the handwriting and signature of
deceased; and thus, the handwriting and signature were identified as per
Section 47 of Evidence Act. The Trial Court also observed that the draft
was in the cover containing the executed Will and there was no chance
to open the sealed cover; and that even if the Will did not contain all
what was written in Ex. P.3, it was not a ground to raise any suspicion.
5.4. The Trial Court further observed that the fact that the deceased
had taken help of PW-1, a distant relative, in presence of close relative
like defendant No. 1 and his sons, was sufficient to hold that there was
no love lasting between the deceased and the defendant No. 1 and his
sons. The Trial Court observed that indisputably, the earlier Will, executed
in the year 1974, was cancelled in the year 1990 but therein too, the
defendant No. 1 and his family had not been given anything; and the
intention of the deceased was clear that he was not willing to give
anything to the defendant No. 1 and his family. The Trial Court also
referred to the fact that defendant Nos. 2 & 3, the sisters of the deceased,
did not come before the Court to speak against the Will in question.
5.5. As regards connectivity of the deceased with the plaintiffs,
the Trial Court referred to the fact that in the admission forms of the
plaintiff No. 1 pertaining to the years 1991-92 and 1993-94 for I.U.C.
classes in Gavisidddeshwar College, Koppal, the deceased had signed in
place of the guardian; and as per the address given in those applications,
he was staying in Warkar Galli C/o Sangappa Gadedshetter. Hence, the
allegations of the defendants that the plaintiffs were staying separately
were rejected. The Trial Court observed that even if father and mother
of the plaintiffs were later on staying separately due to difference of
opinion in women-fold, the fact remained that, prior to the year 1993, the
plaintiffs and their parents were staying with the deceased as seen by
the voter lists (Exs. P.12-16) of Koppal Town pertaining to years 1975 to
1993.
5.6. As regards the state of mind of the deceased, the Trial Court
observed that the deceased was in sound state of mind at the time of
execution of Will; and he died 3 years after making of Will and, on the
SHIVAKUMAR & ORS. v. SHARANABASAPPA & ORS.
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day of his demise, had gone to attend the marriage 100 kms away, which
showed that he was capable of managing himself. The Trial Court also
observed that some of the discrepancies indicated by the defendants
had essentially arisen because of self-scribing of the Will and it cannot
be said that the deceased was a feeble person.
Discrepancies/Suspicions Answered by the Trial Court:
5.7. The Trial Court also proceeded to deal with some of the
discrepancies pointed out by the defendants in the Will in question and
answered the same as follows:
5.7.1. The Trial Court observed that the discrepancy in Hindi and
English Calendar dates as found in Ex. P.3 cannot be made a ground to
disbelieve the entire Will, particularly when the date mentioned in the
Will i.e., 20.05.1991 was falling on Monday and the same had been the
statements of PW-3 and PW-4. This discrepancy, according to the Trial
Court was of no bearing on the substance of the matter.
5.7.2. The Trial Court further observed that absence of property
numbers cannot be a ground to hold that the Will was a forged one; and
that the location of house property either in Warkar Galli or Katarki road
was inconsequential so far as giving effect to the Will, as the deceased
wanted to give the property with the boundaries mentioned therein.
Similarly, the property shown as item number 2 in Schedule D was
available with municipal number and was admittedly belonging to the
deceased Sangappa. Therefore, according to the Trial Court, any
discrepancy in particulars was of no bearing; and the blanks were also
not casting any doubt or suspicion on the Will in question. The Trial Court
further observed that certain inconsistencies or certain improper directions
may not be called as suspicious circumstances; and that though the
description of property in para 5 of the Will did not disclose the name of
the legatee to whom it was bequeathed but, that too was not a
circumstance to disbelieve the entire Will.
5.7.3. The Trial Court yet further observed that non-registration
of Will cannot raise the presumption of forgery and fabrication. The
Trial Court also observed that the reason for keeping the Will secret was
that the legatees under the earlier Will were not respecting the feelings
of the deceased and hence, the deceased kept everybody guessing about
the contents of his last Will.
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5.7.4. As regards the suspicious circumstance asserted by the
defendants that deceased had not left anything for his wife in the Will
executed in the year 1991, the Trial Court observed that when, apart
from the properties shown in the Will, the deceased was leaving other
properties too, definitely those properties would have gone to his wife
and hence, not making the provision for wife in the Will was not a ground
that could be raised as suspicion. The Trial Court also observed that in
para 3 of the Will, 4 acres of the land of Irkalgada was given to Gopur
Basaveshwara Temple, which clearly showed that the deceased had
given properties to charitable purposes also.
5.7.5. As regards entering of the names of the legatees in the Will
by the deceased by filing an application to municipality on 04.09.1993
during his life time, the Trial Court observed that such entries were of no
legal effect and do not operate against the Will in question.
5.7.6.