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?
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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.
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(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.
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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:
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“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
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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
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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
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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.
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(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
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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.
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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
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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
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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
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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.
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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,
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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.
