Case Note & Summary
The appeal arose from the judgment and decree dated 8.10.2009 passed by the Civil Judge (Sr.Dn.) and ACJM, Karkala, in O.S.No.134/2006, dismissing a suit for partition. The plaintiff, appellant herein, is the son of late K. Narayana Shenoy and brother of the defendants. The family properties, described as A, B, and C schedules, were admitted to be the self-acquired properties of the deceased father. The plaintiff claimed that the father died intestate on 1.5.1998 and that the plaintiff and defendants, being the only legal heirs, were entitled to equal shares. He alleged that the first defendant was altering and misusing the properties without consent, compelling him to seek partition. The first defendant resisted the suit by propounding a Will dated 4.1.1998, under which each child was given a specific property. He contended that the plaintiff was aware of the Will and that a sketch annexed to it showed the division, but the plaintiff was dissatisfied. The trial court framed issues on intestacy, property ownership, and validity of the Will. The plaintiff examined himself as PW.1 and marked Exhibits P1 to P4. The first defendant examined himself as DW.1 and two other witnesses, and marked Exhibits D1 to D40. The trial court answered issues 1-4, 6, and 7 in the negative and issue 5 affirmatively, holding that the Will was proved and dismissing the suit. In appeal, the appellant challenged the genuineness of the Will, asserting that it was fabricated with superimposition of testator’s signature. A coordinating bench referred the admitted and disputed signatures to a handwriting expert, whose opinion indicated that the signatures on the Will were not those of the testator. The appellant argued that the Will was surrounded by suspicious circumstances and could not be relied upon. The appeal was heard, and the handwriting expert’s report was part of the additional evidence to be evaluated. The judgment reserved but excerpt does not contain final decision.
Headnote
A) Succession – Testamentary Disposition – Proof of Will – Indian Succession Act, 1925 – Plaintiff, a son, claimed intestate partition of properties left by father; defendant brother propounded a Will dated 04.01.1998 bequeathing specific items to each child – Trial court upheld the Will and dismissed the suit – In appeal, handwriting expert opined that the signatures on the Will did not belong to the testator – Appellant contended that the Will was fabricated and surrounded by suspicious circumstances – Held: The matter was pending consideration on the validity of the Will based on the expert evidence and other circumstances (Paras 1-17). B) Civil Procedure – Appellate Court’s Power – Additional Evidence – Section 96 r/w Order XLI Rule 1, Code of Civil Procedure, 1908 – During pendency of regular first appeal, the High Court referred admitted and disputed signatures of the testator to a handwriting expert – The expert report was received indicating that the disputed signatures were not of the testator – The appellate court was to assess the evidential value of this opinion in determining the genuineness of the Will (Paras 15-17).
Issue of Consideration
Whether the Will dated 4.1.1998 executed by late K. Narayana Shenoy is valid and proves testamentary succession, thereby defeating the plaintiff’s claim for intestate partition?
Law Points
- burden of proof on propounder of Will
- suspicious circumstances must be removed
- handwriting expert opinion may be considered
- partition suit maintainable if intestacy proved
