Dayanandi vs Rukma D Suvarna & Ors on 31 October, 2011

Supreme Court of India
Dayanandi vs Rukma D Suvarna & Ors on 31 October, 2011
Author: G Singhvi
Bench: G.S. Singhvi, Asok Kumar Ganguly
                                                                                NON-REPORTABLE


                       IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 7548 OF 2002




Dayanandi                                                                ... Appellant 


                                            Versus


Rukma D. Suvarna and others                                              ... Respondents





                                     J U D G M E N T

G.S. Singhvi, J.

1. This appeal is directed against the judgment of the learned Single

Judge of the Karnataka High Court whereby he allowed the appeal filed by

respondent No.1, reversed the judgment and decree passed by Ist Additional

Civil Judge, Mangalore (hereinafter referred to as, `the trial Court’) and

decreed the suit filed by her for partition and separate possession of her

share in the suit property.

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2. The suit property was owned by Singa Gujaran, father of respondent

No.1, appellant and respondent Nos. 2 to 6. About 3 months and 10 days

before his death, Singa Gujaran executed Will dated 25.5.1987. He

bequeathed the property specified in item No.1 of the Schedule attached to

the Will to one of his four daughters, namely, Kalyani (respondent No.3) and

the property specified in item No.2 jointly to the other daughters, namely,

Dayanandi (appellant), Rukma (respondent No.1) and Deena (respondent

No.2).

3. After one year of the demise of Singa Gujaran, respondent No.1 filed

suit for partition and separate possession of her share in plaint Schedule `B’

property. She pleaded that her father had executed Will dated 25.5.1987 and

bequeathed plaint Schedule `A’ property to respondent No.3 Kalyani and

plaint Schedule `B’ property to other daughters but by taking advantage of

the acute illness of the father, the appellant and respondent No.2

manipulated the execution of another Will depriving her of share in the

property.

4. In the written statement jointly filed by them, appellant and

respondent No.2 did not deny the execution of Will dated 25.5.1987 by

Singa Gujaran but they questioned the genuineness and validity of the Will

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relied upon by respondent No.1 and pleaded that after executing the Will,

the deceased had made alterations and thereby disinherited respondent No.1.

They further pleaded that Singa Gujaran executed another Will dated

25.8.1987, in which respondent No.1 was not given any share because she

did not attend funeral of the mother and even when the testator visited

Bombay in May, 1987, she did not come to meet him. According to the

appellant and respondent No.2, at the time of execution of the second Will

Singa Gujaran was in a sound state of mind and he consciously denied any

share in the property to respondent No.1. They claimed that respondent

No.1 has filed suit for partition and possession of her alleged share in the

suit property by taking advantage of the testator’s subsequent illness and his

inability to speak or move about.

5. On the pleadings of the parties, the trial Court framed the following

issues:

“1. Whether the suit is bad for non-joinder of necessary

parties? (deleted)

2. Whether the plaintiff proves that Late Singa Gujaran

executed a Will dated 25.8.1987 and whether it was the last

and effective Will of the Late Singa Gujaran?

3. Whether defendants No. 1 and 2 prove that their father

Late Singa Gujaran executed the Will dated 25.8.1987 and

whether it is the last and effective Will of Singa Gujaran?

4

4. Whether defendants No.1 and 2 prove the Panchayat

alleged in para 9 of the written statement and whether the

plaintiff accepted the jewellery? (deleted)

5. Whether the defendants 1 and 2 also prove that rents are

being collected by Amarnath and spending for maintenance of

property, payment of tax and to look after Ravindra who is

congenitally mentally retarded and is dumb?

6. Whether the plaintiff is entitled to claim a share in the

rental income of buildings situated in plaint “B” scheduled

property?

7. Whether the plaintiff is entitled to partition and separate

possession of 1/3rd share in plaint `B’ scheduled properties as

claimed?

8. To what reliefs are the parties entitled.”

6. In support of her case, respondent No.1 examined herself and 5 other

witnesses including PW-5 Dr. J. Subba Rao and produced 11 documents

which were marked as Exhibits P.1 to P.11. She also got produced original

Will dated 25.5.1987 (Exhibit P.1) from the appellant. The appellant

examined herself as DW-1 and produced the second Will which was marked

as Exhibit D.1.

7. After analyzing the pleadings of the parties and the evidence produced

by them, the trial Court held that execution of Will dated 25.5.1987 is

proved but observed that by virtue of the alterations made in that Will, the

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deceased has consciously disinherited respondent No.1. The trial Court

noted that the names of four persons were mentioned in Exhibit P.1 in

respect of the second item of the Schedule but the name of respondent No.1

Rukma was deleted and total number of the beneficiaries was also changed.

The trial Court referred to the statement of respondent No.1 that her father

had shown Exhibit P.1 without any correction as also the alleged admission

made by her in response to a question put in the cross-examination and

observed:

“16. PW-1 in the chief-examination, appearing on page No.3

states that her father had shown Ex.P.1 to her and when she

had seen there was no insertion or correction noted in Ex.P.1,

but she has not stated that the correction or deletion was made

by defendant No.1. In the cross examination, appearing at

page 7, PW-1 specifically admits that the documents writer

before completing the document will mention the corrections

made in the document. She states that she did not notice the

corrections made in Ex.P.1. She admits that her father Singa

Gujaran affixed LTM on Ex.P.1. Further admission of PW-1

appearing in the form of question and answer on the face

depict that the said corrections and deletions appearing in

Ex.P.1 was made before the contents were read over to Singa

Gujaran. In this regard, I am inspired to extract the testimony

of PW-1 appearing in the form of question and answer made

not in her cross examination, which reads thus:

Question: Is it not that the striking off and the correction at

the end of the document made at the time of preparation of the

document by the scribe?

Answer: Striking off and the correction were written at the

time when the document was read over to my father.

6

(True and correct English Translation of Kannada Portion).

Thus the answer given by PW-1 appearing in the cross-

examination itself suffice to conclude that the corrections

made in Ex.P.1 were within the knowledge of Singa Gujaran

and when the scribe read over the contents of Ex.P.1, those

corrections were found in Ex.P1. In this regard the testimony

of PW-5 may be recollected, who in the chief-examination

itself has deposed that the contents of Ex.p1 were read over

by the scribe to Singa Gujaran, who admitted the same and

affixed his LTM. This shows that, after the name of plaintiff

`Rukma’ was deleted and the corrections were made, so as to

bequeath to 3 persons instead of 4 persons, Singa Guajan by

understanding that the name of Rukma was deleted and the

`B’ schedule property was to be bequeathed only to

defendants 1 to 3, affixed his LTM. After giving answer as

extracted supra, PW-1 realised and further deposed that she

gave such answer in confusion, but there was no such

confusion as a clear cut question was put to her and she gave a

very clean answer and the same has been recorded.”

The trial Court also discarded the testimony of PW-5 by making the

following observations:

“The plaintiff examined PW-5 to prove Ex.P.1 and also to

convince the court that the corrections made in Ex.P.1

deleting the name of the plaintiff as after thought by defendant

No.1, whereas the said correction was not found when Singa

Gujaran affixed his LTM, but in this regard the plaintiff failed

to convince that fact, because PW-5 not supported to that

extent. When Ex.P.1 was confronted to PW-5, he has deposed

that the contents of the same were read over to Singa Gujaran

by the scribe, who admitted the contents and then affixed his

LTM. This witness states that he also read over the contents

of Ex.P.1 and states thus:

`After having read this, what stated in Ex.P.1 now was in

fact written.

7

Question:-1 Whether in Ex.P.1 on the first page the

word, `nalvarige’ was struck off and the word `moovarige’

was written in pen at that time?

        Ans:-         I do not know about it.


        Question:-2           Whether   in   the   second   page   the   word, 

`Rukma’ was struck off and on top of it `3′ as written in pen

and in the next line the word, `nalvaru’ was struck off and the

word, `moovaru’ was written in pen at that time?

Ans:- I do not know about it also.

(True and correct English translation of Kannada portion).

Thus, the testimony of PW-5 goes against the assertion of the

plaintiff, because PW-5, who is a doctor and who was treating

Singa Gujaran has clearly deposed that whatever the contents

appear now in Ex.P.1, were very much present when Singa

Gujaran executed it, thereby he has ruled out the possibility of

any corrections or alterations made after execution of it by

Singa Gujaran. He has not deposed that the corrections noted

in Ex.P.1, were not present at the time of execution by Singa

Gujaran, but to the questions put to him as extracted above, he

has shown ignorance, but his first part referred supra,

unequivocally depict that the contents of Ex.P.1 which are

now existing, including the corrections and alterations, were

available at the time of execution by Singa Gujaran.”

The trial Court finally held that respondent No.1 was not entitled to

any share in the suit property and accordingly dismissed the suit.

8. In the appeal filed by respondent No.1, the High Court framed the

following points:

8

“1) Whether the alternation/deletion of the plaintiff’s name

in the first Will Ext.P.1 was done prior to its execution

by the executant or not?

2) Whether the finding of the court below that the second

Will Ext.D-1 is proved, is justified or not?”

9. The High Court first considered the issue whether

corrections/alterations made in Exhibit P.1 existed when the testator

appended his thumb impression, referred to the evidence produced by the

parties, noticed Section 71 of the Indian Succession Act, 1925 (for short,

`the Act’) and observed:

“A bare perusal of the original of Ext.P.1 discloses the first

alteration is found at page No.1 in the last second and third line,

where the name of Rukkamma has been struck off and

subsequently in place `to four persons’ is struck off and the

word `to three persons’ is inserted in page No.2 and in third line

the word Rukkamma is deleted and in the fourth line `to four

persons’ is struck off and `to three persons’ has been inserted.

As required under Section 71 of the Indian Succession Act,

1925 no signature of the testator is made in the margin or at

some other part of the Will or near to such alteration or at the

foot or end or opposite to a memorandum referring to such

alteration. Therefore, when such alteration has not been made

in the manner indicated under Section 71 such alterations will

not have any effect. Secondly, as to the question whether said

alterations were made prior to the execution of the Will or

subsequent to the execution of the Will there is absolutely no

evidence adduced by either of the parties. However, an attempt

is made on the part of the respondents counsel to point out the

evidence of PW-1 wherein she has stated that the said

corrections are made at the time when it was read over to her

father whereby meaning that after alterations were made it was

9

read over to the executant and he affixed his LTM in token of

such alterations also. It is this admission which has been taken

note of by the court below to hold that the said alterations were

there before execution and therefore, the Will has to be

executed with the said alterations. It is nobody’s case that PW-

1 was present at the time of the execution of Ext.P.1 In fact,

realising the mistake committed by her an attempt is made

subsequently to explain it. But it is clear that her admission has

no legal basis as she was not present at the time Ex.P1 was

executed. If the evidence is excluded from record, there is no

other evidence placed on record by the defendant to

demonstrate that the said alteration was made prior to the

execution of the Will. In fact, the doctor, attesting witness PW-

5 is unable to answer a pointed question whether such

alterations were there when the Will was executed and when he

attested the Will. In the aforesaid circumstances, no importance

could be given to the so called admission of the plaintiff to hold

that the said alterations were there before executing the

Will……….”

(emphasis supplied)

10. The High Court then considered the question whether Singa Gujaran

had voluntarily executed the second Will (Ext. D1), analysed the evidence

produced by the parties including statements of the doctors examined by

respondent No.1 and answered the same in negative. The High Court also

dealt with the reasons put forward by the appellant and respondent No.2 to

justify the alleged decision of Singa Gujaran to disinherit respondent No.1

and observed:

“On the face of it the said reason given for disinheriting the

plaintiff do not appear to be genuine. The mother of the

plaintiff died in the year 1985. If his father was upset

10

because she did not attend the funeral in 1985, in 1987

when he was making the will he would not have given a

share in the B-schedule property to the plaintiff under

Ex.P.1 and that cannot be made a ground to disinherit the

plaintiff in the second will when under the first will a specific

share has been given to the plaintiff. In between the first will

and second will hardly the gap is three months. The case

advanced by the defendant is after making the first will his

father went to Bombay to the second defendant’s house

and the plaintiff did not visit him. Absolutely no material is

placed before court to substantiate the said case. The said

case is highly impossible because the material on record

disclose that on 11lh of August 1987 his father was

admitted to Tara Clinic which fact was totally denied by the

defendant in her reply notice. It is to demonstrate the said

fact the plaintiff has examined three doctors as witnesses.

Their evidence has remained unchallenged and ultimately

the defendant also admits that the father was admitted to

Tara Nursing Home. The evidence on record disclose that

on 11th of August 1987 when the father was admitted in the

hospital after examination when it was found that he was

suffering from stomach cancer probably as it was at

advanced stage the doctor advised the parties to take him

back to the house as no useful purpose would be served by

keeping him in the clinic. Therefore, after examination he

was brought back to the house and no treatment was

given. The evidence of his grandson PW-6 who is son of

third defendant gives an indication of his state of health. At

the time of attesting the testator was in the nursing home.

He states that on 11th of August 1987 he was admitted to

the nursing home and on 13th he was discharged. The

doctors informed them that the deceased is at the

advanced stage of cancer and they cannot give any

treatment. Therefore, three persons lifted him to the car and

brought him back to the house. When he was brought to

the house from the hospital he was in unconscious state

and he was not taking any food. Dr. Subbarao was visiting

the house. After he was taken to Tara Clinic he was not in

a position to walk. In fact, the said witness and his mother

was staying next doors to the house where Singa Gujaran

11

was staying. In the cross-examination of DW-1 she admits

that her relationship with her mother was cordial. Under

these circumstances, the materials on record disclose that

at the time Ext. D-1 was alleged to have been executed by

the executant he was suffering from stomach cancer and

his health was not in good state. It is 14 days after his

admission to the nursing home the said will has come into

existence. Fourteen days thereafter he has died. It cannot

be said that under these circumstances he was in a sound

state of disposing state of mind to execute Ext.D-1.”

11. We have heard learned counsel for the parties and perused the record.

We shall first consider the question whether the hand written endorsement

made at the end of the typed Will (Exhibit P.1) was made at the instance of

the testator before he affixed his left thumb mark and whether the High

Court committed an error by reversing the finding recorded by the trial

Court on this issue.

12. Sections 63 and 71 of the Act which have bearing on the decision of

the first question read as under:

“63. Execution of unprivileged Wills.- Every testator, not

being a soldier employed in an expedition or engaged in actual

warfare, or an airman so employed or engaged, or a mariner at

sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will,

or it shall be signed by some other person in his presence

and by his direction.

12

(b) The signature or mark of the testator, or the signature of

the person signing for him, shall be so placed that it shall

appear that it was intended thereby to give effect to the

writing as a Will.

(c) The Will shall be attested by two or more witnesses, each

of whom has seen the testator sign or affix his mark to

the Will or has seen some other person sign the Will, in

the presence and by the direction of the testator, or has

received from the testator a personal acknowledgement

of his signature or mark, or of the signature of such other

person; and each of the witnesses shall sign the Will in

the presence of the testator, but it shall not be necessary

that more than one witness be present at the same time,

and no particular form of attestation shall be necessary.

71. Effect of obliteration, interlineation or alteration in

unprivileged Will. – No obliteration, interlineation or other

alteration made in any unprivileged Will after the execution

thereof shall have any effect, except so far as the words or

meaning of the Will have been thereby rendered illegible or

undiscernible, unless such alteration has been executed in like

manner as hereinbefore is required for the execution of the

Will:

Provided that the Will, as so altered, shall be deemed to be duly

executed if the signature of the testator and the subscription of

the witnesses is made in the margin or on some other part of the

Will opposite or near to such alteration, or at the foot or end of

or opposite to a memorandum referring to such alteration, and

written at the end or some other part of the Will.”

13. An analysis of Section 63 shows that the testator must sign or affix his

mark on the Will or the same shall be signed by some other person as per his

direction and in his presence. The signature or mark of the testator or the

signature of the person signing for him shall be placed in a manner which

13

may convey the intention of the testator to give effect to the writing as a

Will, which is also required to be attested by two or more persons, each of

whom must have seen the testator sign or affix his mark on the Will or some

other person sign the Will in the presence or as per the direction of the

testator. If the witness has received a personal acknowledgment from the

testator of his signature or mark or the signature of other person signing on

his behalf, then it is not necessary that both the witnesses shall

simultaneously remain present. The section also lays down that no

particular form of attestation is necessary.

14. The plain language of Section 71 makes it clear that any alteration

made in an unprivileged Will after its execution has no effect unless such

alteration has been executed in the same manner in which the Will is

executed. The proviso to this section carves out an exception and lays down

that such alterations shall be deemed to be duly executed if the signature of

the testator and the subscription of the witnesses is made in the margin or on

some other part of the Will opposite or near to such alterations or at the foot

or end or opposite to a memorandum referring to such alterations and written

at the end or some part of the Will.

14

15. A careful scrutiny of the pleadings of the parties and the evidence

produced by them shows that Will Exhibit P.1 was scribed by Narsappayya

and was witnessed by PW-5 Dr. J. Subba Rao and B.V. Amin. Respondent

No.1 was not present at the time Exhibit P.1 was scribed and executed by

Singa Gujaran by putting his left thumb mark. In his testimony, PW-5 stated

that the contents of Exhibit P.1 were read over to Singa Gujaran by

Narsappayya and he understood the same. PW-5 expressed ignorance about

the corrections/alterations made in the Will i.e. scoring out of the word

`four’ and writing of word `three’ as also scoring out the name of respondent

No.1 Rukma. He then stated that Singa Gujaran was suffering from stomach

cancer and when he sent the patient to Dr. Prabhakar in July/mid-August, he

was finding it difficult to eat. Later, Dr. Prabhakar referred the patient to Dr.

Ballal who confirmed that he was suffering from stomach cancer.

16. We have gone through Exhibit P.1, which was got produced by

respondent No.1 from the appellant. Four corrections have been made on

pages 1 and 2 of this document. The figures written in letters (four) were

substituted with numbers (3) and the name of respondent No.1 was scored

out (page 2). At the end of the Will, the testator appended his left thumb

mark. On the right side of thumb mark a line has been written with the ink

pen/ball pen suggesting that the corrections/alterations were made prior to

15

putting of left thumb mark by the testator. However, the space between the

last line of the typed Will (in Kannada) and what was written with the ink

pen/ball pen leaves no manner of doubt that the writing on the right side of

the thumb mark was made after execution of the Will. If the

corrections/alterations had been made before the testator had appended his

left thumb mark, there was no reason why the line showing deletion of the

name of respondent No.1 and corrections in the figures were not reflected in

the typed Will and why the line was inserted in the little space left between

the concluding portion of the Will and the space where the left thumb mark

was put by the testator. Therefore, we approve the view taken by the High

Court that the corrections/alterations made in Exhibit P1 cannot be said to

have been duly attested by the testator as per the requirement of Section 71

of the Act and respondent No.1 is entitled to share in the property specified

in Schedule `B’ appended to the plaint.

17. The next question which merits consideration is whether Exhibit D.1

was duly executed by Singa Gujaran and, therefore, the first Will will be

deemed to have become redundant. Admittedly, Ext. D1 was propounded

by the appellant and respondent No.2 and was contested by respondent No.1,

who specifically pleaded that by taking advantage of the ill health of the

father, the appellant and respondent No.2 conspired and manipulated

16

execution of the second Will purporting to disinherit her. According to

respondent No.1, at the time of execution of the second Will, Singa Gujaran

was seriously ill and was not in a sound state of mind so as to understand the

implications and consequences of his actions. In support of this assertion,

respondent No.1 examined Dr. B.R. Kamath (PW-2), Dr. Prabhakar Rao

(PW-3) and Dr. C.R. Ballal (PW-4) apart from PW-5 Dr. J. Subba Rao. All

of them categorically stated that Singa Gujaran was suffering from acute

stomach cancer and he was not in a position to eat. The statement of PW-6

is also significant on the issue of health of the executant. This witness gave

out that the executant was taken to the car by three persons and they brought

him back to the house in an unconscious state of mind and he was not taking

any food. PW-6 also gave out that the executant was not in a position to

walk. The appellant and respondent No.2 relied upon the testimony of PW-

5, who had been examined by respondent No.1 to prove the execution of the

Will Exhibit P.1. In his cross examination PW-5 disclosed that as per his

knowledge, Singa Gujaran had made two Wills and he was a witness to the

second Will as well which, according to him, was also scribed by

Narsappayya. According to PW-5, the testator had affixed left thumb mark

on Exhibit D.1 and he had signed the Will as a witness in the clinic. What is

significant to be noted is that PW-5 did not say that Singa Gujaran had

17

affixed left thumb mark in his presence and that he had put his signatures as

witness in the presence of the testator. As to the state of health of the

executant, PW-5 categorically stated that he was suffering from acute

stomach cancer and was not in a position to eat or walk. It has come in the

evidence of the parties that the executant was admitted in Tara Clinic on

11.8.1987 and when the doctor attending him found that cancer was at an

advanced stage, they advised the parties to take him home. It has also come

on record that just 14 days after the execution of the second Will, the

executant died. Therefore, it is not possible to find any fault with the finding

recorded by the High Court that the execution of Exhibit D.1 was highly

suspicious.

18. It is also apposite to observe that if Singa Gujaran had consciously

decided to disinherit respondent No.1 in the first Will by appending his left

thumb mark after corrections/alterations were made and the name of

respondent No.1 was deleted, there was no reason for him to execute the

second Will. In her evidence, the appellant and respondent No.2 could not

offer any tangible explanation as to why it became necessary for her father

to execute the second Will after he had already disinherited respondent No.1.

This also supports the conclusion that execution of Exhibit D.1 was not a

voluntary act of the testator.

18

19. We may now advert to the two reasons put forth by the appellant and

respondent No.2, which did not find favour with the High Court, to

substantiate their plea that the testator had consciously disinherited

respondent No.1. The first reason was that respondent No.1 did not attend

the funeral of her mother and on that count the father was upset. On the face

of it, this reason does not sound plausible. It is an admitted position that the

mother of the parties died in 1985. If the father was upset with respondent

No.1 on the ground that the latter had not come to attend the funeral of the

mother, then he would not have given any share to her in item No.2 of the

Schedule appended to Ext. P1. However, the fact of the matter is that the

testator did give share to respondent No.1 along with two other daughters. It

is a different thing that some manipulative alterations were made in Ext. P1

giving an impression that before putting his left thumb mark, the testator had

consciously disinherited respondent No.1. The second reason was that

respondent No.1 did not come to attend him during his visit to Bombay in

May, 1987. In this context, it is important to bear in mind that the appellant

and respondent No.2 did not adduce any evidence to prove that the testator

had visited Bombay between 25.5.1987 i.e. the date on which the first Will

was executed and 11.8.1987 when he was admitted in the nursing home.

That apart, it was highly improbable that the testator, who was terminally ill,

19

would have gone to Bombay for the purpose of treatment. Therefore, the so

called failure of respondent No.1 to meet the testator during his visit to

Bombay cannot be relied upon as a ground for accepting the version of the

appellant and respondent No.1 that he was upset with respondent No.1 and

decided to disinherit her by executing Ext. D1.

20. In the result, the appeal is dismissed. The parties are left to bear their

own costs.

……………………………………J.

[G.S. Singhvi]

…………………………………….J.

[Asok Kumar Ganguly]

New Delhi

October 31, 2011.

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