{"id":161830,"date":"2011-10-31T00:00:00","date_gmt":"2011-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dayanandi-vs-rukma-d-suvarna-ors-on-31-october-2011"},"modified":"2016-05-03T01:48:41","modified_gmt":"2016-05-02T20:18:41","slug":"dayanandi-vs-rukma-d-suvarna-ors-on-31-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dayanandi-vs-rukma-d-suvarna-ors-on-31-october-2011","title":{"rendered":"Dayanandi vs Rukma D Suvarna & Ors on 31 October, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dayanandi vs Rukma D Suvarna & Ors on 31 October, 2011<\/div>\n
Author: G Singhvi<\/div>\n
Bench: G.S. Singhvi, Asok Kumar Ganguly<\/div>\n
                                                                                NON-REPORTABLE\n\n\n                       IN THE SUPREME COURT OF INDIA\n\n\n                        CIVIL APPELLATE JURISDICTION\n\n\n                        CIVIL APPEAL NO. 7548 OF 2002\n\n\n\n\nDayanandi                                                                ... Appellant \n\n\n                                            Versus\n\n\nRukma D. Suvarna and others                                              ... Respondents\n\n\n\n\n\n                                     J U D G M E N T\n<\/pre>\n
G.S. Singhvi, J.\n<\/p>\n<\/p>\n
1.      This   appeal   is   directed   against   the   judgment   of   the   learned   Single <\/p>\n
Judge of the Karnataka High Court whereby he allowed the appeal filed by <\/p>\n
respondent No.1, reversed the judgment and decree passed by Ist Additional <\/p>\n
Civil   Judge,   Mangalore   (hereinafter   referred   to   as,   `the   trial   Court’)   and <\/p>\n
decreed   the   suit   filed   by   her   for   partition   and   separate   possession   of   her <\/p>\n
share in the suit property.\n<\/p>\n
\n                                                                                          2<\/span><\/p>\n
2.        The suit property was owned by Singa Gujaran, father of respondent <\/p>\n
No.1, appellant and respondent Nos. 2 to 6.   About 3 months and 10 days <\/p>\n
before   his   death,   Singa   Gujaran   executed   Will   dated   25.5.1987.     He <\/p>\n
bequeathed the property specified in item No.1 of the Schedule attached to <\/p>\n
the Will to one of his four daughters, namely, Kalyani (respondent No.3) and <\/p>\n
the property specified  in item No.2 jointly to the other daughters, namely, <\/p>\n
Dayanandi   (appellant),   Rukma   (respondent   No.1)   and   Deena   (respondent <\/p>\n
No.2).\n<\/p>\n<\/p>\n
3.        After one year of the demise of Singa Gujaran, respondent No.1 filed <\/p>\n
suit for partition and separate possession of her share in plaint Schedule `B’ <\/p>\n
property.  She pleaded that her father had executed Will dated 25.5.1987 and <\/p>\n
bequeathed   plaint   Schedule   `A’   property   to   respondent   No.3   Kalyani   and <\/p>\n
plaint Schedule `B’ property to other daughters but by taking advantage of <\/p>\n
the   acute   illness   of   the   father,   the   appellant   and   respondent   No.2 <\/p>\n
manipulated   the   execution   of   another   Will   depriving   her   of   share   in   the <\/p>\n
property.\n<\/p>\n<\/p>\n
4.        In   the   written   statement   jointly   filed   by   them,   appellant   and <\/p>\n
respondent   No.2   did   not   deny   the   execution   of   Will   dated   25.5.1987   by <\/p>\n
Singa Gujaran but they questioned the genuineness and validity of the Will <\/p>\n
                                                                                            3<\/span><\/p>\n
relied upon by respondent No.1 and  pleaded that after executing  the Will, <\/p>\n
the deceased had made alterations and thereby disinherited respondent No.1. <\/p>\n
They   further   pleaded   that   Singa   Gujaran   executed   another   Will   dated <\/p>\n
25.8.1987, in which respondent No.1 was not given any share because she <\/p>\n
did   not   attend   funeral   of   the   mother   and   even   when   the   testator   visited <\/p>\n
Bombay   in   May,   1987,   she   did   not   come   to   meet   him.     According   to   the <\/p>\n
appellant and respondent No.2, at the time of execution of the second Will <\/p>\n
Singa Gujaran was in a sound state of mind and he consciously denied any <\/p>\n
share   in   the   property   to   respondent   No.1.     They   claimed   that   respondent <\/p>\n
No.1 has filed suit for partition and possession  of her alleged share in the <\/p>\n
suit property by taking advantage of the testator’s subsequent illness and his <\/p>\n
inability to speak or move about.\n<\/p>\n<\/p>\n
5.     On the pleadings of the parties, the trial Court framed the following <\/p>\n
issues:\n<\/p>\n<\/p>\n
           “1.    Whether   the   suit   is   bad   for   non-joinder   of   necessary <\/p>\n
           parties? (deleted)<\/p>\n
           2.     Whether   the   plaintiff   proves   that   Late   Singa   Gujaran <\/p>\n
           executed a Will dated 25.8.1987 and whether it was the last <\/p>\n
           and effective Will of the Late Singa Gujaran?<\/p>\n<\/blockquote>\n
           3.     Whether   defendants   No.  1   and   2  prove  that   their   father <\/p>\n
           Late   Singa   Gujaran   executed   the   Will   dated   25.8.1987   and <\/p>\n
           whether it is the last and effective Will of Singa Gujaran?<\/p>\n
                                                                                                  4<\/span><\/p>\n<\/blockquote>\n
          4.    Whether   defendants   No.1   and   2   prove   the   Panchayat <\/p>\n
          alleged   in   para   9   of   the   written   statement   and   whether   the <\/p>\n
          plaintiff accepted the jewellery? (deleted)<\/p>\n<\/blockquote>\n
          5.    Whether the defendants 1 and 2 also prove that rents are <\/p>\n
          being collected by Amarnath and spending for maintenance of <\/p>\n
          property,   payment   of   tax   and   to   look   after   Ravindra   who   is <\/p>\n
          congenitally mentally retarded and is dumb?<\/p>\n<\/blockquote>\n
          6.    Whether   the   plaintiff   is   entitled   to   claim   a   share   in   the <\/p>\n
          rental   income   of   buildings   situated   in   plaint   “B”   scheduled <\/p>\n
          property?\n<\/p><\/blockquote>\n
<\/blockquote>\n
          7.    Whether the plaintiff is entitled to partition and separate <\/p>\n
          possession of 1\/3rd  share in plaint `B’ scheduled properties as <\/p>\n
          claimed?\n<\/p><\/blockquote>\n
<\/blockquote>\n
          8.    To what reliefs are the parties entitled.”<\/p>\n<\/blockquote>\n
6.      In support of her case, respondent No.1 examined herself and 5 other <\/p>\n
witnesses   including   PW-5   Dr.   J.   Subba   Rao   and   produced   11   documents <\/p>\n
which were marked as Exhibits P.1 to P.11.  She also got produced original <\/p>\n
Will   dated   25.5.1987   (Exhibit   P.1)   from   the   appellant.     The   appellant <\/p>\n
examined herself as DW-1 and produced the second Will which was marked <\/p>\n
as Exhibit D.1.\n<\/p>\n<\/p>\n
7.      After analyzing the pleadings of the parties and the evidence produced <\/p>\n
by   them,   the   trial   Court   held   that   execution   of   Will   dated   25.5.1987   is  <\/p>\n
proved but observed that by virtue of the alterations made in that Will, the  <\/p>\n
                                                                                           5<\/span><\/p>\n
deceased   has   consciously   disinherited   respondent   No.1.     The   trial   Court <\/p>\n
noted   that   the   names   of   four   persons   were   mentioned   in   Exhibit   P.1   in <\/p>\n
respect of the second item of the Schedule but the name of respondent No.1  <\/p>\n
Rukma was deleted and total number of the beneficiaries was also changed. <\/p>\n
The trial Court referred to the statement of respondent No.1 that her father <\/p>\n
had shown Exhibit P.1 without any correction as also the alleged admission <\/p>\n
made   by   her   in   response   to   a   question   put   in   the   cross-examination   and <\/p>\n
observed:\n<\/p>\n<\/p>\n
         “16. PW-1 in the chief-examination, appearing on page No.3 <\/p>\n
         states that her father had shown Ex.P.1 to her and when she <\/p>\n
         had seen there was no insertion or correction noted in Ex.P.1, <\/p>\n
         but she has not stated that the correction or deletion was made <\/p>\n
         by   defendant   No.1.     In   the   cross   examination,   appearing   at <\/p>\n
         page   7,   PW-1   specifically   admits   that   the   documents   writer <\/p>\n
         before completing the document will mention the corrections <\/p>\n
         made in the document.   She states that she did not notice the <\/p>\n
         corrections made in Ex.P.1.   She admits that her father Singa <\/p>\n
         Gujaran affixed LTM on Ex.P.1. Further admission of PW-1 <\/p>\n
         appearing   in   the   form   of   question   and   answer   on   the   face <\/p>\n
         depict   that   the   said   corrections   and   deletions   appearing   in <\/p>\n
         Ex.P.1 was made before the contents were read over to Singa <\/p>\n
         Gujaran.  In this regard, I am inspired to extract the testimony <\/p>\n
         of PW-1 appearing in the form of question and answer made <\/p>\n
         not in her cross examination, which reads thus:<\/p>\n
         Question: Is it not that the striking off and the correction at <\/p>\n
         the end of the document made at the time of preparation of the <\/p>\n
         document by the scribe?\n<\/p><\/blockquote>\n
\n         Answer:       Striking off and the correction were written at the <\/p>\n
         time when the document was read over to my father.<\/p>\n
                                                                                         6<\/span><\/p>\n
       (True and correct English Translation of Kannada Portion).<\/p>\n
       Thus   the   answer   given   by   PW-1   appearing   in   the   cross-<\/p>\n
       examination   itself   suffice   to   conclude   that   the   corrections <\/p>\n
       made in Ex.P.1 were within the knowledge of Singa Gujaran <\/p>\n
       and  when   the   scribe   read   over  the   contents  of  Ex.P.1,   those <\/p>\n
       corrections were found in Ex.P1.  In this regard the testimony  <\/p>\n
       of   PW-5   may   be   recollected,   who   in   the   chief-examination <\/p>\n
       itself has deposed  that the contents of Ex.p1 were read over <\/p>\n
       by   the   scribe   to   Singa   Gujaran,   who   admitted   the   same   and <\/p>\n
       affixed his LTM. This shows that, after the name of plaintiff <\/p>\n
       `Rukma’ was deleted and the corrections were made, so as to <\/p>\n
       bequeath to 3 persons instead of 4 persons, Singa Guajan by <\/p>\n
       understanding   that   the   name   of   Rukma   was   deleted   and   the <\/p>\n
       `B’   schedule   property   was   to   be   bequeathed   only   to <\/p>\n
       defendants 1 to 3, affixed his LTM.   After giving answer as <\/p>\n
       extracted   supra,   PW-1   realised   and   further   deposed   that   she <\/p>\n
       gave   such   answer   in   confusion,   but   there   was   no   such <\/p>\n
       confusion as a clear cut question was put to her and she gave a <\/p>\n
       very clean answer and the same has been recorded.”<\/p><\/blockquote>\n
      The trial Court also discarded the testimony of PW-5 by making the <\/p>\n
following observations:\n<\/p>\n<\/p>\n
       “The   plaintiff   examined   PW-5   to   prove   Ex.P.1   and   also   to <\/p>\n
       convince   the   court   that   the   corrections   made   in   Ex.P.1 <\/p>\n
       deleting the name of the plaintiff as after thought by defendant <\/p>\n
       No.1, whereas the said correction was not found when Singa <\/p>\n
       Gujaran affixed his LTM, but in this regard the plaintiff failed <\/p>\n
       to   convince   that   fact,   because   PW-5   not   supported   to   that <\/p>\n
       extent.  When Ex.P.1 was confronted to PW-5, he has deposed <\/p>\n
       that the contents of the same were read over to Singa Gujaran <\/p>\n
       by the scribe, who admitted the contents and then affixed his <\/p>\n
       LTM.   This witness states that he also read over the contents <\/p>\n
       of Ex.P.1 and states thus:\n<\/p><\/blockquote>\n
<\/blockquote>\n
            `After having read this, what stated in Ex.P.1 now was in <\/p>\n
       fact written.\n<\/p><\/blockquote>\n
\n                                                                                           7<\/span><\/p>\n
        Question:-1           Whether   in   Ex.P.1   on   the   first   page   the <\/p>\n
        word,   `nalvarige’   was   struck   off   and   the   word   `moovarige’ <\/p>\n
        was written in pen at that time?\n<\/p><\/blockquote>\n
<\/blockquote>\n
        Ans:-         I do not know about it.\n\n\n        Question:-2           Whether   in   the   second   page   the   word, \n\n<\/pre>\n
        `Rukma’ was struck off and on top of it `3′ as written in pen <\/p>\n
        and in the next line the word, `nalvaru’ was struck off and the <\/p>\n
        word, `moovaru’ was written in pen at that time?<\/p>\n<\/blockquote>\n
        Ans:-         I do not know about it also.\n<\/p><\/blockquote>\n
\n        (True and correct English translation of Kannada portion).<\/p>\n
        Thus, the testimony of PW-5 goes against the assertion of the <\/p>\n
        plaintiff, because PW-5, who is a doctor and who was treating <\/p>\n
        Singa Gujaran has clearly deposed that whatever the contents <\/p>\n
        appear   now   in   Ex.P.1,   were   very   much   present   when   Singa <\/p>\n
        Gujaran executed it, thereby he has ruled out the possibility of <\/p>\n
        any   corrections   or   alterations   made   after   execution   of   it   by <\/p>\n
        Singa Gujaran.  He has not deposed that the corrections noted <\/p>\n
        in Ex.P.1, were not present at the time of execution by Singa <\/p>\n
        Gujaran, but to the questions put to him as extracted above, he <\/p>\n
        has   shown   ignorance,   but   his   first   part   referred   supra, <\/p>\n
        unequivocally   depict   that   the   contents   of   Ex.P.1   which   are <\/p>\n
        now  existing,  including the  corrections and  alterations,  were <\/p>\n
        available at the time of execution by Singa Gujaran.”<\/p><\/blockquote>\n
      The trial Court finally held that respondent No.1 was not entitled to <\/p>\n
any share in the suit property and accordingly dismissed the suit.  <\/p>\n
8.    In   the   appeal   filed   by   respondent   No.1,   the   High   Court   framed   the <\/p>\n
following points:\n<\/p>\n
\n                                                                                                   8<\/span><\/p>\n
          “1)      Whether the alternation\/deletion of the plaintiff’s name <\/p>\n
                  in the first Will Ext.P.1 was done prior to its execution <\/p>\n
                  by the executant or not?\n<\/p><\/blockquote>\n
<\/blockquote>\n
          2)      Whether the finding of the court below that the second <\/p>\n
                  Will Ext.D-1 is proved, is justified or not?”<\/p>\n<\/blockquote>\n
9.      The   High   Court   first   considered   the   issue   whether <\/p>\n
corrections\/alterations   made   in   Exhibit   P.1   existed   when   the   testator <\/p>\n
appended   his   thumb   impression,   referred   to   the   evidence   produced   by   the <\/p>\n
parties,   noticed   Section   71   of   the   Indian   Succession   Act,   1925   (for   short, <\/p>\n
`the Act’) and observed:\n<\/p>\n<\/p>\n
        “A   bare   perusal   of   the   original   of   Ext.P.1   discloses   the   first <\/p>\n
        alteration is found at page No.1 in the last second and third line, <\/p>\n
        where   the   name   of   Rukkamma   has   been   struck   off   and <\/p>\n
        subsequently   in   place   `to   four   persons’   is   struck   off   and   the <\/p>\n
        word `to three persons’ is inserted in page No.2 and in third line <\/p>\n
        the word Rukkamma  is deleted and in the fourth line `to four <\/p>\n
        persons’ is struck off and `to three persons’ has been inserted. <\/p>\n
        As   required   under   Section   71   of   the   Indian   Succession   Act, <\/p>\n
        1925   no   signature   of   the   testator   is   made   in   the   margin   or   at  <\/p>\n
        some other part of the Will or near to such alteration or at the <\/p>\n
        foot   or   end   or   opposite   to   a   memorandum   referring   to   such <\/p>\n
        alteration.   Therefore, when such alteration has not been made <\/p>\n
        in the manner indicated under Section 71 such alterations will <\/p>\n
        not have any effect.   Secondly, as to the question whether said <\/p>\n
        alterations   were   made   prior   to   the   execution   of   the   Will   or <\/p>\n
        subsequent  to the execution of the Will there is absolutely no <\/p>\n
        evidence adduced by either of the parties.  However, an attempt <\/p>\n
        is made on the part of the respondents counsel to point out the <\/p>\n
        evidence   of   PW-1   wherein   she   has   stated   that   the   said <\/p>\n
        corrections are made at the time when it was read over to her <\/p>\n
        father whereby meaning that after alterations were made it was <\/p>\n
                                                                                               9<\/span><\/p>\n
       read over to the executant and he affixed his LTM in token of <\/p>\n
       such alterations also.  It is this admission which has been taken <\/p>\n
       note of by the court below to hold that the said alterations were <\/p>\n
       there   before   execution   and   therefore,   the   Will   has   to   be <\/p>\n
       executed with the said alterations.  It is nobody’s case that PW-<\/p>\n
       1 was present at the time of the execution of Ext.P.1   In fact, <\/p>\n
       realising   the   mistake   committed   by   her   an   attempt   is   made <\/p>\n
       subsequently to explain it.  But it is clear that her admission has <\/p>\n
       no   legal   basis   as   she   was   not   present   at   the   time   Ex.P1   was <\/p>\n
       executed.   If the evidence is excluded from record, there is no <\/p>\n
       other   evidence   placed   on   record   by   the   defendant   to <\/p>\n
       demonstrate   that   the   said   alteration   was   made   prior   to   the <\/p>\n
       execution of the Will.  In fact, the doctor, attesting witness PW-<\/p>\n
       5   is   unable   to   answer   a   pointed   question   whether   such <\/p>\n
       alterations were there when the Will was executed and when he <\/p>\n
       attested the Will.  In the aforesaid circumstances, no importance <\/p>\n
       could be given to the so called admission of the plaintiff to hold <\/p>\n
       that   the   said   alterations   were   there   before   executing   the <\/p>\n
       Will……….”\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                                                (emphasis supplied)<\/p>\n<\/blockquote>\n
10.    The High Court then considered the question whether Singa Gujaran <\/p>\n
had voluntarily executed the second Will (Ext. D1), analysed the evidence <\/p>\n
produced   by   the   parties   including   statements   of   the   doctors   examined   by <\/p>\n
respondent No.1 and answered the same in negative.   The High Court also <\/p>\n
dealt with the reasons put forward by the appellant and respondent No.2 to <\/p>\n
justify the alleged decision of Singa Gujaran to disinherit respondent No.1 <\/p>\n
and observed:\n<\/p><\/blockquote>\n
<\/blockquote>\n
       “On the face of it the said reason given for disinheriting the <\/p>\n
       plaintiff do not appear to be genuine. The mother of the <\/p>\n
       plaintiff   died   in   the   year  1985.  If   his   father   was   upset <\/p>\n
                                                                          10<\/span><\/p>\n
because she did not attend the funeral in 1985, in 1987 <\/p>\n
when he was making the will he would not have given a <\/p>\n
share  in  the   B-schedule   property   to   the   plaintiff   under <\/p>\n
Ex.P.1 and that cannot be made a ground to disinherit the <\/p>\n
plaintiff in the second will when under the first will a specific <\/p>\n
share has been given to the plaintiff. In between the first will <\/p>\n
and second will hardly the gap is three months. The case <\/p>\n
advanced by the defendant is after making the first will his <\/p>\n
father went to Bombay  to  the second defendant’s house <\/p>\n
and  the  plaintiff did not visit him. Absolutely  no  material is <\/p>\n
placed before court to substantiate the said case. The said <\/p>\n
case is highly impossible because the material on record <\/p>\n
disclose   that   on   11lh  of   August  1987  his  father  was <\/p>\n
admitted to Tara Clinic which fact was totally denied by the <\/p>\n
defendant in her reply notice. It is to demonstrate the said <\/p>\n
fact the plaintiff has examined three doctors as witnesses. <\/p>\n<\/blockquote>\n<\/blockquote>\n
Their evidence has remained unchallenged and ultimately <\/p>\n
the defendant also admits that the father was admitted to <\/p>\n
Tara Nursing Home. The evidence on record disclose that <\/p>\n
on 11th of August 1987 when the father was admitted in the <\/p>\n
hospital after examination when it was found that he was <\/p>\n
suffering   from   stomach   cancer   probably   as   it   was   at <\/p>\n
advanced stage the doctor advised the parties to take him <\/p>\n
back to the house as no useful purpose would be served by <\/p>\n
keeping him in the clinic. Therefore, after examination he <\/p>\n
was   brought   back   to   the   house   and   no   treatment   was <\/p>\n
given. The evidence of his grandson PW-6 who is son of <\/p>\n
third defendant gives an indication of his state of health. At <\/p>\n
the time of attesting the testator was in the nursing home. <\/p>\n<\/blockquote>\n
He states that on 11th  of August 1987 he was admitted to <\/p>\n
the   nursing   home   and   on   13th  he   was   discharged.   The <\/p>\n
doctors   informed   them   that   the   deceased   is   at   the <\/p>\n
advanced   stage   of   cancer   and   they   cannot   give   any <\/p>\n
treatment. Therefore, three persons lifted him to the car and <\/p>\n
brought him back to the house. When he was brought to <\/p>\n
the house from the hospital he was in unconscious state <\/p>\n
and he was not taking any food.  Dr. Subbarao was visiting <\/p>\n
the house.  After he was taken to Tara Clinic he was not in <\/p>\n
a position to walk. In fact, the said witness and his mother <\/p>\n
was staying next doors to the house where Singa Gujaran <\/p>\n
                                                                                            11<\/span><\/p>\n
       was staying. In the cross-examination of DW-1 she admits <\/p>\n
       that   her   relationship   with   her   mother   was   cordial.   Under <\/p>\n
       these circumstances, the materials on record disclose that <\/p>\n
       at the time Ext. D-1 was alleged to have been executed by <\/p>\n
       the executant he was suffering from stomach cancer and <\/p>\n
       his health was not in good state.   It is 14 days  after his <\/p>\n
       admission to the nursing home the said will has come into <\/p>\n
       existence.  Fourteen days thereafter he has died. It cannot <\/p>\n
       be said that under these circumstances he was in a sound <\/p>\n
       state of disposing state of mind to execute Ext.D-1.”<\/p>\n
11.    We have heard learned counsel for the parties and perused the record. <\/p>\n
We shall first consider the question whether the hand written endorsement <\/p>\n
made at the end of the typed Will (Exhibit P.1) was made at the instance of <\/p>\n
the   testator   before   he   affixed   his   left   thumb   mark   and   whether   the   High <\/p>\n
Court   committed   an   error   by   reversing   the   finding   recorded   by   the   trial <\/p>\n
Court on this issue.\n<\/p>\n<\/p>\n
12.    Sections 63 and 71 of the Act which have bearing on the decision of <\/p>\n
the first question read as under:\n<\/p>\n<\/p>\n
       “63.   Execution   of   unprivileged   Wills.-  Every   testator,   not <\/p>\n
       being a soldier employed in an expedition or engaged in actual <\/p>\n
       warfare, or an airman so employed or engaged, or a mariner at <\/p>\n
       sea, shall execute his Will according to the following rules:-<\/p>\n<\/blockquote>\n
       (a)     The testator shall sign or shall affix his mark to the Will, <\/p>\n
               or it shall be signed by some other person in his presence <\/p>\n
               and by his direction.\n<\/p><\/blockquote>\n
\n                                                                                              12<\/span><\/p>\n<\/blockquote>\n
       (b)      The signature or mark of the testator, or the signature of <\/p>\n
                the person signing for him, shall be so placed that it shall <\/p>\n
                appear that it was intended thereby to give effect  to the <\/p>\n
                writing as a Will.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (c)      The Will shall be attested by two or more witnesses, each <\/p>\n
                of whom has seen the testator sign or affix his mark to <\/p>\n
                the Will or has seen some other person sign the Will, in <\/p>\n
                the presence  and by the direction of the testator, or has <\/p>\n
                received   from   the   testator   a   personal   acknowledgement <\/p>\n
                of his signature or mark, or of the signature of such other <\/p>\n
                person; and each of the witnesses shall sign the Will in <\/p>\n
                the presence of the testator, but it shall not be necessary <\/p>\n
                that more than one witness be present at the same time,  <\/p>\n
                and no particular form of attestation shall be necessary.<\/p>\n<\/blockquote>\n
       71.     Effect   of   obliteration,   interlineation   or   alteration   in <\/p>\n
       unprivileged   Will.   –  No   obliteration,   interlineation   or   other <\/p>\n
       alteration   made   in   any   unprivileged   Will   after   the   execution <\/p>\n
       thereof   shall   have   any   effect,   except   so   far   as   the   words   or <\/p>\n
       meaning   of   the   Will   have   been   thereby   rendered   illegible   or <\/p>\n
       undiscernible, unless such alteration has been executed in like <\/p>\n
       manner   as   hereinbefore   is   required   for   the   execution   of   the <\/p>\n
       Will:\n<\/p><\/blockquote>\n
\n       Provided that the Will, as so altered, shall be deemed to be duly <\/p>\n
       executed if the signature of the testator and the subscription of <\/p>\n
       the witnesses is made in the margin or on some other part of the  <\/p>\n
       Will opposite or near to such alteration, or at the foot or end of <\/p>\n
       or opposite to a memorandum referring to such alteration, and <\/p>\n
       written at the end or some other part of the Will.” <\/p>\n<\/blockquote>\n
13.    An analysis of Section 63 shows that the testator must sign or affix his <\/p>\n
mark on the Will or the same shall be signed by some other person as per his <\/p>\n
direction and in his presence.   The signature or mark of the testator or the <\/p>\n
signature of the person signing for him shall be placed in a manner which <\/p>\n
                                                                                                    13<\/span><\/p>\n
may   convey   the   intention   of  the   testator   to   give   effect   to   the   writing   as   a  <\/p>\n
Will, which is also required to be attested by two or more persons, each of  <\/p>\n
whom must have seen the testator sign or affix his mark on the Will or some  <\/p>\n
other   person   sign   the   Will   in   the   presence   or   as   per   the   direction   of   the <\/p>\n
testator.   If the  witness has received  a  personal  acknowledgment   from the <\/p>\n
testator of his signature or mark or the signature of other person signing on <\/p>\n
his   behalf,   then   it   is   not   necessary   that   both   the   witnesses   shall <\/p>\n
simultaneously   remain   present.     The   section   also   lays   down   that   no <\/p>\n
particular form of attestation is necessary.\n<\/p>\n<\/p>\n
14.     The   plain   language   of   Section   71   makes   it   clear   that   any   alteration <\/p>\n
made  in an unprivileged Will after its execution has no effect  unless such  <\/p>\n
alteration   has   been   executed   in   the   same   manner   in   which   the   Will   is <\/p>\n
executed.  The proviso to this section carves out an exception and lays down <\/p>\n
that such alterations shall be deemed to be duly executed if the signature of <\/p>\n
the testator and the subscription of the witnesses is made in the margin or on <\/p>\n
some other part of the Will opposite or near to such alterations or at the foot  <\/p>\n
or end or opposite to a memorandum referring to such alterations and written <\/p>\n
at the end or some part of the Will.\n<\/p>\n
\n                                                                                             14<\/span><\/p>\n
15.    A   careful   scrutiny   of   the   pleadings   of   the   parties   and   the   evidence <\/p>\n
produced by them shows that Will Exhibit P.1 was scribed by Narsappayya <\/p>\n
and was witnessed by PW-5 Dr. J. Subba Rao and B.V. Amin.  Respondent  <\/p>\n
No.1 was not present at the time Exhibit P.1 was scribed and executed by <\/p>\n
Singa Gujaran by putting his left thumb mark.  In his testimony, PW-5 stated <\/p>\n
that   the   contents   of   Exhibit   P.1   were   read   over   to   Singa   Gujaran   by <\/p>\n
Narsappayya and he understood the same.  PW-5 expressed ignorance about <\/p>\n
the   corrections\/alterations   made   in   the   Will   i.e.   scoring   out   of   the   word <\/p>\n
`four’ and writing of word `three’ as also scoring out the name of respondent <\/p>\n
No.1 Rukma.  He then stated that Singa Gujaran was suffering from stomach <\/p>\n
cancer and when he sent the patient to Dr. Prabhakar in July\/mid-August, he <\/p>\n
was finding it difficult to eat.  Later, Dr. Prabhakar referred the patient to Dr. <\/p>\n
Ballal who confirmed that he was suffering from stomach cancer.  <\/p>\n
16.    We   have   gone   through   Exhibit   P.1,   which   was   got   produced   by <\/p>\n
respondent No.1 from the appellant.   Four corrections have been made  on <\/p>\n
pages  1 and  2 of this document.   The  figures written in  letters (four) were  <\/p>\n
substituted with numbers (3) and the name of respondent No.1 was scored <\/p>\n
out (page 2).   At the end of the Will, the testator appended his left thumb <\/p>\n
mark.  On the right side of thumb mark a line has been written with the ink <\/p>\n
pen\/ball  pen   suggesting   that   the   corrections\/alterations  were  made  prior  to <\/p>\n
                                                                                               15<\/span><\/p>\n
putting of left thumb mark by the testator.  However, the space between the <\/p>\n
last line of the typed Will (in Kannada) and what was written with the ink <\/p>\n
pen\/ball pen leaves no manner of doubt that the writing on the right side of <\/p>\n
the   thumb   mark   was   made   after   execution   of   the   Will.     If   the <\/p>\n
corrections\/alterations had been made  before the testator had appended his <\/p>\n
left thumb mark, there was no reason why the line showing deletion of the <\/p>\n
name of respondent No.1 and corrections in the figures were not reflected in <\/p>\n
the typed Will and why the line was inserted in the little space left between <\/p>\n
the concluding portion of the Will and the space where the left thumb mark  <\/p>\n
was put by the testator.  Therefore, we approve the view taken by the High <\/p>\n
Court that the corrections\/alterations made  in Exhibit P1 cannot be said to <\/p>\n
have been duly attested by the testator as per the requirement of Section 71 <\/p>\n
of the Act and respondent No.1 is entitled to share in the property specified <\/p>\n
in Schedule `B’ appended to the plaint.\n<\/p>\n<\/p>\n
17.     The next question which merits consideration is whether Exhibit D.1 <\/p>\n
was   duly   executed   by   Singa   Gujaran   and,   therefore,   the   first   Will   will   be <\/p>\n
deemed  to have become  redundant.   Admittedly, Ext. D1 was propounded <\/p>\n
by the appellant and respondent No.2 and was contested by respondent No.1, <\/p>\n
who   specifically   pleaded   that   by   taking   advantage   of   the   ill   health   of   the <\/p>\n
father,   the   appellant   and   respondent   No.2   conspired   and   manipulated <\/p>\n
                                                                                              16<\/span><\/p>\n
execution   of   the   second   Will   purporting   to   disinherit   her.     According   to <\/p>\n
respondent No.1, at the time of execution of the second Will, Singa Gujaran <\/p>\n
was seriously ill and was not in a sound state of mind so as to understand the <\/p>\n
implications and consequences of his actions.   In support of this assertion, <\/p>\n
respondent   No.1   examined   Dr.   B.R.   Kamath   (PW-2),   Dr.   Prabhakar   Rao <\/p>\n
(PW-3) and Dr. C.R. Ballal (PW-4) apart from PW-5 Dr. J. Subba Rao.  All  <\/p>\n
of   them   categorically   stated   that   Singa   Gujaran   was   suffering   from   acute <\/p>\n
stomach cancer and he was not in a position to eat.  The statement of PW-6 <\/p>\n
is also significant on the issue of health of the executant.  This witness gave <\/p>\n
out that the executant was taken to the car by three persons and they brought <\/p>\n
him back to the house in an unconscious state of mind and he was not taking <\/p>\n
any food.    PW-6 also gave out that the executant was not in a position to  <\/p>\n
walk.  The appellant and respondent No.2 relied upon the testimony of PW-<\/p>\n
5, who had been examined by respondent No.1 to prove the execution of the <\/p>\n
Will Exhibit P.1.   In his cross examination PW-5 disclosed that as per his <\/p>\n
knowledge, Singa Gujaran had made two Wills and he was a witness to the <\/p>\n
second   Will   as   well   which,   according   to   him,   was   also   scribed   by <\/p>\n
Narsappayya.  According to PW-5, the testator had affixed left thumb mark <\/p>\n
on Exhibit D.1 and he had signed the Will as a witness in the clinic. What is <\/p>\n
significant   to   be   noted   is   that   PW-5   did   not   say   that   Singa   Gujaran   had <\/p>\n
                                                                                                     17<\/span><\/p>\n
affixed left thumb mark in his presence and that he had put his signatures as  <\/p>\n
witness   in   the   presence   of   the   testator.     As   to   the   state   of   health   of   the  <\/p>\n
executant,   PW-5   categorically   stated   that   he   was   suffering   from   acute <\/p>\n
stomach cancer and was not in a position to eat or walk.  It has come in the <\/p>\n
evidence   of   the   parties   that   the   executant   was   admitted   in   Tara   Clinic   on <\/p>\n
11.8.1987 and when the doctor attending him found that cancer was at an <\/p>\n
advanced stage, they advised the parties to take him home.  It has also come <\/p>\n
on   record   that   just   14   days   after   the   execution   of   the   second   Will,   the <\/p>\n
executant died.  Therefore, it is not possible to find any fault with the finding <\/p>\n
recorded   by   the   High   Court   that   the   execution   of   Exhibit   D.1   was   highly <\/p>\n
suspicious.\n<\/p>\n<\/p>\n
18.     It   is   also   apposite   to   observe   that   if   Singa   Gujaran   had   consciously <\/p>\n
decided to disinherit respondent No.1 in the first Will by appending his left <\/p>\n
thumb   mark   after   corrections\/alterations   were   made   and   the   name   of <\/p>\n
respondent   No.1   was   deleted,   there   was   no   reason   for   him   to   execute   the <\/p>\n
second Will.   In her evidence, the appellant and respondent No.2 could not <\/p>\n
offer any tangible explanation as to why it became necessary for her father <\/p>\n
to execute the second Will after he had already disinherited respondent No.1. <\/p>\n
This  also  supports  the conclusion   that  execution  of  Exhibit  D.1 was  not  a <\/p>\n
voluntary act of the testator.\n<\/p>\n
\n                                                                                       18<\/span><\/p>\n
19.    We may now advert to the two reasons put forth by the appellant and <\/p>\n
respondent   No.2,   which   did   not   find   favour   with   the   High   Court,   to <\/p>\n
substantiate   their   plea   that   the   testator   had   consciously   disinherited <\/p>\n
respondent No.1. The first reason was that respondent No.1 did not attend <\/p>\n
the funeral of her mother and on that count the father was upset.  On the face <\/p>\n
of it, this reason does not sound plausible.  It is an admitted position that the <\/p>\n
mother of the parties died in 1985.   If the father was upset with respondent <\/p>\n
No.1 on the ground that the latter had not come to attend the funeral of the <\/p>\n
mother, then he would not have given any share to her in item No.2 of the  <\/p>\n
Schedule appended to Ext. P1.   However, the fact of the matter is that the <\/p>\n
testator did give share to respondent No.1 along with two other daughters.  It <\/p>\n
is a different thing that some manipulative alterations were made in Ext. P1 <\/p>\n
giving an impression that before putting his left thumb mark, the testator had <\/p>\n
consciously   disinherited   respondent   No.1.     The   second   reason   was   that <\/p>\n
respondent No.1 did not come to attend him during his visit to Bombay in <\/p>\n
May, 1987.   In this context, it is important to bear in mind that the appellant  <\/p>\n
and respondent No.2 did not adduce any evidence to prove that the testator <\/p>\n
had visited Bombay between 25.5.1987 i.e. the date on which the first Will <\/p>\n
was   executed   and   11.8.1987   when   he   was   admitted   in   the   nursing   home. <\/p>\n
That apart, it was highly improbable that the testator, who was terminally ill,  <\/p>\n
                                                                                               19<\/span><\/p>\n
would have gone to Bombay for the purpose of treatment.  Therefore, the so <\/p>\n
called   failure   of   respondent   No.1   to   meet   the   testator   during   his   visit   to <\/p>\n
Bombay cannot be relied upon as a ground for accepting the version of the <\/p>\n
appellant and respondent No.1 that he was upset with respondent No.1 and <\/p>\n
decided to disinherit her by executing Ext. D1.\n<\/p>\n<\/p>\n
20.     In the result, the appeal is dismissed.  The parties are left to bear their <\/p>\n
own costs.\n<\/p>\n<\/p>\n
                                                     ……………………………………J.<\/p>\n
                                                        [G.S. Singhvi]<\/p>\n
                                                     …………………………………….J.<\/p>\n
                                                          [Asok Kumar Ganguly]<\/p>\n
New Delhi<\/p>\n
October 31, 2011.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-161830","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDayanandi vs Rukma D Suvarna & Ors on 31 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dayanandi-vs-rukma-d-suvarna-ors-on-31-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dayanandi vs Rukma D Suvarna & Ors on 31 October, 2011 - 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