Case Note & Summary
The Regular First Appeal arose from a suit for declaration, partition, and mesne profits filed by one of the daughters of late M. Krishnappa. The deceased had executed three Wills, the last being dated 15.06.2001, by which the suit properties were bequeathed solely to his sons, with a direction to pay Rs. 5,000 per annum for five years to the daughters. The plaintiff contended that this Will was invalid as it was contrary to the testator's true intention, created under the dominant influence of defendant No. 8, an advocate, and was tainted by suspicious circumstances. The trial court dismissed the suit, holding that the plaintiff had admitted the Will and failed to prove its invalidity, and that the certified copy of the Will was sufficient to prove its execution. The appellant-plaintiff argued in appeal that the propounders of the Will (defendants) had not discharged the legal burden of proving the Will by examining attesting witnesses as required under Section 63 of the Indian Succession Act, 1956, and Section 68 of the Indian Evidence Act, 1872. The appellant further contended that the trial court erroneously shifted the burden onto the plaintiff. The judgment excerpt, however, remains incomplete, and the final decision of the High Court is not recorded.
Headnote
A) Succession Law - Proof of Will - Burden of proof under Section 63, Indian Succession Act, 1956 and Section 68, Indian Evidence Act, 1872 - The appeal involved a challenge to a Will dated 15.06.2001 executed by deceased M. Krishnappa, which was alleged to be suspicious and not proved by examining attesting witnesses - The trial court had held that the plaintiff failed to prove the will was invalid and that production of certified copy was sufficient - Appellants contended that the propounders failed to discharge the burden of proving the will as required by law (Paras 1-9).
B) Civil Procedure - Appeals - Regular First Appeal under Section 96, Code of Civil Procedure, 1908 - Challenge to trial court decree dismissing suit for declaration, partition and mesne profits - Grounds raised pertained to erroneous shifting of burden of proof and misappreciation of evidence - Court heard arguments but final adjudication not available in present excerpt (Paras 1, 8, 9).
Issue of Consideration
Whether the Will dated 15.06.2001 is valid and binding on the plaintiff, and whether the trial court rightly dismissed the suit for partition based on the proof of the will.
Law Points
- Proof of will under Section 63 of Indian Succession Act
- 1956 and Section 68 of Indian Evidence Act
- 1872
- Burden of proof lies on propounders of will
- Suspicious circumstances surrounding execution of will must be removed
- Certified copy of will alone is insufficient to prove execution
- Attesting witnesses must be examined to prove will
Case Details
2024 LawText (KAR) (06) 48
Regular First Appeal No.117 of 2015 (PAR)
Gangadharappa A V. (for appellants), A Subramanya Prasad (for R3-R6 & R11), Chithappa (for R10), Shanmukhappa (for R2)
Smt. Chandra Prabha, Smt. S. Pushpavathi, Smt. K. Kokila, Smt. Arunakumari
Smt. K. Sarojammal, Smt. Kanaka, Munirathnam K @ Purushotham (since dead by LRs Smt Kala @ Kalavathi, Smt. Poornima, Smt. Sangeetha, Savitha), Munigovindaraju, Munigopala, Smt. Muniradha @ Radha, Smt. G. Lalitha, Smt. Supriya, Smt. Sunanda, Miss Pooja
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Nature of Litigation
Civil suit for declaration that the Will dated 15.06.2001 executed by late M. Krishnappa is not binding, for partition and separate possession of 1/7th share in suit schedule properties, and for mesne profits.
Remedy Sought
Plaintiff sought a declaration that the Will dated 15.06.2001 is void and not binding on her, for partition by metes and bounds granting her 1/7th share, and for mesne profits.
Filing Reason
Plaintiff alleged that the third Will dated 15.06.2001 was created contrary to the true intention of the testator, under the dominant influence of defendant No. 8 (an advocate), and deprived the daughters of their legitimate share, whereas the earlier Will dated 16.02.2001 had bequeathed properties to both sons and daughters.
Previous Decisions
The trial court (XVIII Addl. City Civil Judge, Bengaluru) dismissed the suit vide judgment and decree dated 26.09.2014, holding that the plaintiff had admitted the Will and failed to prove its invalidity; certified copy Ex.P-3 was sufficient proof of execution, and the Will was acted upon.
Issues
Whether the Will dated 15.06.2001 is valid and binding on the plaintiff?
Whether the plaintiff is entitled to 1/7th share in the suit schedule properties?
Whether the propounders of the Will have discharged the burden of proving its execution in accordance with Section 63 of the Indian Succession Act, 1956 and Section 68 of the Indian Evidence Act, 1872?
Submissions/Arguments
Appellant argued that the propounders failed to examine attesting witnesses as required by law, and thus the Will was not proved; the trial court erred in shifting the burden onto the plaintiff; defendant No. 8 had played a dominant role and there were suspicious circumstances which were not dispelled.
Respondents contended that the testator had executed three Wills and the last Will dated 15.06.2001 was genuine and validly executed; the daughters were beneficiaries under the Will to the extent of Rs. 5,000 per year for five years; the plaintiff had admitted execution of the Will and the certified copy was sufficient proof.
Judgment Excerpts
The plaintiff has failed to prove the Will dated 15.06.2001 was made by his father M.Krishnappa at the instance of the defendant No.8 and testator had no good health both physically and mentally and conscious at the time of execution of Will.
production of Ex.P-3, certified copy of the Will dated 15.06.2001 itself is sufficient to ensure that the plaintiff and other defendants have knowledge about the execution of same.
the burden is on the defendants, who are the propounders of the Will to prove the Will but not on the plaintiff.
the defendants have not at all examined the attesting witnesses.
Procedural History
Plaintiff filed suit O.S.No.3086/2005 before XVIII Addl. City Civil Judge, Bengaluru, seeking declaration, partition, and mesne profits. Trial court framed issues, recorded evidence, and dismissed the suit on 26.09.2014. Plaintiff preferred Regular First Appeal No.117/2015 under Section 96 CPC. By order dated 15.09.2016, respondents 7 to 9 were transposed as appellants 2 to 4. The appeal came up for further arguments and judgment was pronounced on 07.06.2024, but the available text of the judgment is incomplete, omitting the final operative part.
Acts & Sections
- Indian Succession Act, 1956: Section 63
- Indian Evidence Act, 1872: Section 68
- Hindu Succession Act, 1956:
- Code of Civil Procedure, 1908: Section 96
