JUDGMENT
V.G. Sabhahit, J.
1. This appeal by the plaintiff is directed against the judgment and decree passed by the District Judge, Karwar, in R.A. No. 10 of 1987, dated 13-9-1994 reversing the judgment and decree passed by the Civil Judge, Karwar in O.S. No. 10 of 1977, dated 11-9-1987.
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:
The plaintiff filed the suit for a declaration that she is the owner of the A schedule property and entitled to possession of the same and in the alternative that she is the adopted daughter of Yeshwanti and wherefore she is entitled to declaration of title in respect of the schedule properties. In the alternative for partition and possession of one half share in A and B schedule properties.
3. It is averred in the plaint that the plaint schedule properties are the self-acquired properties of the plaintiff’s mother Yeshwanti Tai Soiru Ankolekar who died on 17-3-1961 at Bombay. Defendant 1 is the genative son of the said Yeshwanti and the plaintiff is the daughter by adoption. The plaintiff was brought up by Yeshwanti ever since the plaintiff was a child of 2 months and she was later taken in adoption by the said Yeshwanti and thus recognised as the full daughter of the said Smt. Yeshwanti. Defendant 2 is the wife of defendant 1 and defendants 3 to 5 are the tenants who are occupying the second frontal rooms of the ground floor of the house building at plaint serial No. 4. It is further averred that Yeshwanti was residing at Bombay and from her profession she has made vast earnings, she got built the suit house besides acquiring all the properties and by her last Will and testament dated 22-5-1957 she disposed of her properties and bequeathed the same to the plaintiff and defendant 1. Item Nos. 1 to 4 of plaint A schedule property was bequeathed in favour of plaintiff and Item Nos. 5 and 6 described in B schedule were bequeathed to defendant 1 and after the death of Yeshwanti the Will was acted upon and the defendant unauthorisedly got his name entered in the schedule properties despite right of the plaintiff and thereafter an application was made by the plaintiff and ultimately revenue authorities asked the parties to settle the matter before the Civil Court and wherefore the suit.
4. The suit was resisted by the defendants denying the averments made in the plaint that plaintiff is the adopted daughter of Yeshwanti. It is averred that defendant 1 is the only legal representative of Yeshwanti. The defendants denied the execution of the Will be in favour of plaintiff and defendant 1 as averred in the plaint and averred that the said Will is concocted and plaintiff is not entitled to any reliefs sought for in the suit. They also claimed possession, perfection of title by adverse possession and averred that suit is barred by time and plaintiff is not entitled to the relief sought for in the plaint. The Trial Court framed appropriate issues. On behalf of the plaintiff was examined as P.W. 1 and she also examined P.Ws. 2 to 5 and Exs. P. 1 to P. 51 were got marked. On behalf of the defendants, the first defendant was examined as D.W. 1 and got marked Exs. D. 1 to D. 57. The Trial Court after considering the contention of the parties and the material on record by its judgment dated 11-9-1987 negatived the contention of the plaintiff that she is the adopted daughter of Yeshwanti and held that the plaintiff has proved the execution of the Will Ex. P. 7, dated 22-5-1957 and wherefore entitled to declaration and possession of A schedule properties in view of the bequeath under the Will and accordingly, decreed the suit of the plaintiff in part. The finding of the Trial Court that the plaintiff has failed to prove adoption as averred in the plaint was not challenged by the plaintiff. However, the defendants preferred R.A. No. 10 of 1987 on the file of the District Judge, Karwar, and the learned District Judge by his judgment dated 13-9-1994 held that the plaintiff has failed to prove the execution of the Will by Yeshwanti and reversed the finding of the Trial Court and dismissed the suit. Being aggrieved by the same, the plaintiff preferred this appeal under Section 100 of the CPC.
5. The appeal was disposed of by order dated 9-3-1998 and being aggrieved by the same, defendants preferred Civil Appeal No. 2258 of 1999 on the file of the Hon’ble Supreme Court. The Hon’ble Supreme Court by judgment dated 13-7-2004 allowed the appeal and set aside the order passed by this Court on 9-3-1998 and remitted the matter to this Court for fresh disposal, in accordance with law.
6. I have heard the learned Counsel appearing for the appellant. The learned Counsel appearing for respondents 1 and 2 sought permission to retire from the case and he has been permitted to retired and respondents who have taken back the papers from the learned Counsel appearing for respondents 1 and 2 have not engaged any Counsel nor appeared before the Court in person. This Court while admitting the appeal on 13-12-1994 has framed the following substantial question of law:
“Whether the First Appellate Court was justified in setting aside the decree passed by the Trial Court in O.S. No. 10 of 1987 while recording its findings in respect of due execution of Will said to have been executed by Yeshwanti Ankolkar in favour of the plaintiff and whether material evidence has been over looked to non-suit the plaintiff’s case?”
7. The learned Counsel appearing for the appellant submitted that the First Appellate Court was not at all justified in reversing the finding passed by the Trial Court that the plaintiff has proved due execution of the Will. He submitted that the three of the attestators and the scribe had died and the persons who are acquainted with the handwriting are examined and the Trial Court invoked presumption under Section 90 of the Indian Evidence Act, 1872 and has rightly appreciated the oral and documentary evidence on record and also held that defendants apart from denying execution of the Will have not pointed out any suspicious circumstances and the grounds relied upon by the First Appellate Court in reversing the finding of the Trial Court is perverse and arbitrary. He relied upon the decisions of the Supreme Court in Smt. Sushila Devi v. Pandit Krishna Kumar Missir and Ors., , Uma Devi Nambiar and Ors. v. T.C. Sidhan (dead), , Satya Pal Gopal Das v. Smt. Panchubala Dasi and Ors., , in support of his contentions that mere fact that the plaintiff was allotted a moity share in the schedule properties would not be a suspicious circumstance and the Will could be proved by raising presumption under Section 90 of the Indian Evidence Act and suspicious circumstances have to be averred and proved. It is well-settled that the suspicious circumstances surrounding the execution of the Will should be averred and proved. Further, it is also well-settled that the very purpose of execution the Will is to divert the normal course of succession. In para 16 of the judgment in Uma Devi Nambiar’s case, the Hon’ble Supreme Court has observed as follows:
“A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, , it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavati v. Chandraja Kadamba, . In Rabindra Nath Mukherjee v. Panchanan Banerjee (dead) by L.Rs, , it was observed that the circumstances of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly”.
8. When the reasoning given by the First Appellate Court is considered in the light of the principles laid down in the above cited cases, it is clear that the First Appellate Court was not at all justified in setting aside the decree passed by the Trial Court. The Trial Court after considering the evidence of P.Ws. 2 to 5 and also having regard to the fact that the three of the testators are dead and the scribe is also dead and P.Ws. 2 to 4 who are the persons acquainted with the signatures of the attestators have been examined and they have identified the signatures and drawing presumption under Section 90 of the Indian Evidence Act and also the evidence of the Sub-Registrar while registering the Will who has spoken to about the fact that the plaintiff has affixed her LTM on the document admitting the execution of the Will has rightly come to the conclusion that there is no suspicious circumstance surrounding the execution of the Will and it was natural that plaintiff who was fostered by Yeshwanti since plaintiff was two months old had affection towards her and mere fact that she was allotted A schedule properties and defendant 1 was allotted B schedule properties would not itself be a suspicious circumstance. The First Appellate Court has proceeded on the basis that the witnesses who have been examined are related to the attestators and has also held that the duty was cast upon the plaintiff to send the Will for the opinion of the finger print expert to prove LTM of Yeshwanti on the Will and has further stated that fact that lion share is given to the plaintiff and the share that is bequeathed to the first defendant is small when compared to the share given to the plaintiff is a suspicious circumstance and further has held that the Trial Court was not justified in drawing presumption under Section 90 of the Indian Evidence Act as there is no material to show that the Will was acted upon. The First Appellate Court has failed to note that mere fact that a moity share has been bequeathed to the plaintiff would not be a suspicious circumstance. D.W. 1 does not state anything about the suspicious circumstance surrounding the execution of the Will and does not deny the LTM of Yeshwanti and the attesting witnesses on the Will Ex. P. 44 and there is no evidence adduced apart from the self-serving statement of the first defendant regarding the suspicious circumstances. The First Appellate Court failed to note that defendants did not aver and prove any suspicious circumstance surrounding the execution of the Will and the material on record also did not give raise to any suspicious circumstance which were genuine and the First Appellate Court was also not justified in holding that the Trial Court was not justified in invoking the provisions of Section 90 of the Indian Evidence Act as the said finding is contrary to the material on record as the material on record would clearly show that the contents of the Will were acted upon and the material on record shows that the Will was handed over to the plaintiff by first defendant. However, the first defendant got his name entered and thereafter plaintiff made an application for entering her name also and subsequently entry was made jointly in the name of plaintiff and the first appellant obviously as per the contents of the Will and D.W. 1 apart from stating that Yeshwanti would not have affixed her LTM without her knowledge has not made out any ground for suspicious circumstance surrounding execution of the Will and he also does not dispute that the Will was acted upon as revealed by the material on record and wherefore, it is clear that the substantial question of law has to be answered in favour of the appellant and the judgment and decree passed by the First Appellate Court is liable to be set aside and the judgment and decree passed by the Trial Court is entitled to be restored. Accordingly, I pass the following order:
The appeal is allowed. The judgment and decree passed in R.A. No. 10 of 1987 by the District Judge, Karwar dated 13-9-1994 is set aside and the judgment and decree passed by the Trial Court in O.S. No. 10 of 1977, dated 11-9-1987 is restored. However, having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.