Rukma D. Suvarna vs Dayanamdi and Others

Mr. Justice N. Kumar

This is the plaintiff''s first, appeal against the judgment and decree dated 8.12.1995 passed by the I Additional Civil Judge, Mangalore, Dakshina Kannada, in O.S. No. 221/83 dismissing the suit of the plaintiff.

Plaintiff has filed the above suit for the relief of partition of the B--Schedule property by metes and bounds in three equal shares and delivery of one share to the plaintiff and for accounting of the income from the B---schedule property and pay to the plaintiff''s 1/3 share in the income.

The plaintiff''s case is that the plaintiff and defendants-1 to 6 are all the children of one late Singa Gujaran and that the late Singa Gujaran, the father of the plaintiff and defendants-1 to 6 was the absolute owner of immovable properties described in schedule--A and B to the plaint. He was in possession and enjoyment of the suit schedule properties. He died on 6.9.1987 leaving behind him, the plaintiff and defendants-1 to 6 as his legal heirs., Late Sri. Singa Gujaran executed a Will dated 25.5.1987 bequeathing '' A'' and '' B'' schedule properties among the plaintiff and the defendants. Under the said Will, schedule.-A was allotted, to the third defendant and schedule-B was allotted to the plaintiff and defendants-1 and 2 jointly. The plaintiff and defendants have been in joint possession of ''A'' and ''and'' schedule properties. A xerox copy of the will dated 25.5.1987 was produced.

After the execution of the Will dated 25.5.1987., late Singa Gujaran fell ill and was bed-ridden, He was not in a position to move about and understand the consequence of these acts. He was also not in a fit disposing state of mind. Taking advantage of this, the defendants-1 and 2 conspired together and brought about another Will purported to have been executed by late Singa Gujaran. It is submitted that the said Will is a concocted and forged Will. It is brought about when the deceased Singa Gujaran was seriously ill and was not in a disposing state of mind and therefore, the same is not valid and binding. Since the plaintiff was residing with her husband at Bombay, the defendants-1 and 2 took undue advantage of the absence of the plaintiff and brought about the said Will. Hence, the said Will is not binding and it is also not a valid Will. Under these circumstances, the plaintiff is entitled to claim her share as per the Will darted 25.5.1987.

it is further alleged that defendants-1 and 2 are trying to damage the building situated in B--schedule property. They are also utilising the income thereof without giving any income to the plaintiff. The building in B-schedule property has been rented out to the tenants and defendants-1 and 2 are collecting the rents every month. Hence the plaintiff is also entitled to claim a share in the said income of the property. The defendants-1 and 2 are liable to be restrained from committing any waste in the property and appropriating income. The plaintiff got issued a lawyers notice on 20.1.88 calling upon the defendants to partition the B --schedule property and allot the plaintiff her 1/3 share. The defendants sent a reply making false and frivolous averments and as there is no chance of any amicable settlement, the plaintiff is constrained to file the suit for the aforesaid reasons.

The defendants-1 and 2 contested the claim of the plaintiff by filing a detailed written statement. They admitted that the suit schedule property belonged to Sri. Singa Gujaran and that he expired on 6-9-1987. It is also contended that. Singa Gujaran had executed a will dated 25.5.1987 and that under that will he bequeathed the plaint A and. B schedule properties. However, they stated that the genuineness of the will set up by the plaintiff is not correct. Without prejudice to the said plea the defendants have? set out a case as under:

6a. The plaintiff was fully aware that her father after altering the earlier will had made a fresh one, kept quiet so long as he was alive and now that he was not alive to speak about the will she has chosen to make false allegations attacking the alleged will. After the alleged first will of May, 1987 Singa Gujaran went to Bombay and stayed in the house of Deena, the second defendant. The. plaintiff even though was informed that the father had come to Bombay did not bother to meet him even in Bombay, apparently because after netting the property she did not care for the father. Earlier, when Smt. Bhavani, wife of Singa. Gujaran and the mother of the parties was not well, the plaintiff did not come to attend on the mother, The plaintiff did not come even for the funeral of her mother. Bhavani. Thus, late Singa Gujaran got completely annoyed and cut off at the total neglect of him by the plaintiff. When Singa Gujaran knew that he would not longer survive after discovery of ''the cancer on the stomach, when the plaintiff came to see him he did not permit her to enter the house or to see him. Thus the plaintiff was fully aware that her father had cut her off even before his death and she waited cunningly until his death and has now chosen to challenge the otherwise genuine will executed by him.

6b. The last and effective will of late Singa Gujaran is the one dated 25.8.1987 duly executed by him whilst in sound and disposing state of mind. Dr. Subba Rao, who was treating him and who was the attestor of the alleged Will of May 1987 is also the attestor to the later Will dated 25.8.87, Sri. K. Narasappayya, the same document writer who prepared the earlier alleged Will is also the document writer who prepared the later-Will so that there is absolutely no doubt about the genuineness of the Will dated 25.8.1987, The only change that took place was to disinherit the plaintiff and that was done under the circumstances already stated above. The allegation that late Singa Gujaran was admitted to Tara Clinic for treatment in the month of December 1987'' as alleged in the notice has been given up in the plaint. Throughout, Singa Gujaran was in sound mind till his last breath. Only on account of severity of cancer of the stomach and oldage, he died. The various allegations that Singa Gujaran was not in a position to speak or move about or to identify persons etc., are made falsely with the view to suit the case filed by the plaintiff and the same is not repeated in the plaint, hut given up. The second Will is the genuine Will. The said Will contains the thumb impression of deceased Singa Gujaran and it was executed by him lawfully and validly. The house in schedule-B property had been let out even during the life time of Singa Gujaran and therefore it is wrong to say that the defendants have rented out the family house to third parties or that the defendants are illegally collecting Rs. 900/- every month,

6c. After the funeral of Singa Gujaran was concluded his last will was brougnt forth in the family circle and the plaintiff who was dissatisfied with the execution of the second will was -satisfied by getting Rs. 10,000/- and also the jewellary of the mother. Accordingly, a panchayat held by Mr. Loknath Bolar was concluded and it was decided that the plaintiff should be paid a sum of Rs. 10,000/- and jewellary should be given to her. Accordingly, she took the jewellary. The defendants had also brought a demand draft for Rs. 10,000/- in the name of the plaintiff. However, the defendant wanted proper documentation so that when the plaintiff had chosen to make false allegations, the defendants did not want to hake any risk. Therefore, when the plaintiff was asked to sign the document while receiving the demand draft for Rs. 10,000/- the plaintiff would appear to have consulted her lawyer and represented to the defendants that she is not willing to sign the document and abide by the decision of Sri. Loknath Bolar, They have denied the -allegation that they are trying to damage the building in the B-schedule property. They contend the rental income is Rs. 850/- per month from two tenants and not Rs. 900/-- as alleged in the plaint. Further they have stated even that amount is not actually collected by these defendants. With the knowledge of the plaintiff the rent is collected by Amarnath, the brother of the parties to the suit. He stays in a portion of one of the buildings in the suit property He collects rent in order to spend for maintenance of the property and payment of tax and also to maintain and look after the eldest brother Ravindra who is mentally retarded and is dumb. So long he lives, someone will have to make arrangement for his living. These? defendants are married and therefore at the request of these defendants Amarnath had agreed to the above arrangement and lives in the suit property on behalf of defendants-1 and 2 on leave and licence basis. The said arrangement was also brought about in the talks held by Sri. Loknath Bolar, Under these circumstances, the allegation of restraining these defendants for committing the alleged weste of the property does not arise, The plaint-A schedule property has been bequeathed to Kalyani who is in possession of it and B-schedule has been bequeathed to these defendants, These defendants are willing to abide by the directions issued in the will regarding payment to Ravindra and Kalyani, Therefore, they prayed for dismissal of the suit.

On the aforesaid pleadings, the learned trial Judge has framed the following issues:

Whether the suit is bad for non-joinder of necessary parties ?

Whether the plaintiff proves that later'' Singa Gujaran executed a will dated 25.5.1987 and whether it is his last will ?

Whether defendants--1 and 2 prove that their father late Singa Gujaran executed the will dated 25.8.1987 and whether it is the last will and effective will of Singa Gujaran ?

Whether the defendants-1 and 2 prove the panchayat in para-9 of the written statement and whether the plaintiff accepted the jewellary ?

Whether defendants-1 and 2 also prove that rents are all being collected by Amarnath and spending far maintenance of property, payment of tax and look after Ravindra who is congenitally mentally retarded and is dumb ?

Whether the plaintiff is entitled to claim a share in the rental income of buildings situated in plaint. IB-schedule property ?

Whether the plaintiff is entitled to partition and separate possession of 1/3rd share plaint B-schedule properties as claimed ?

To what reliefs the parties are entitled ?

The plaintiff in support of his case has examined herself as P.W. 1, In addition, she has examined four doctors as witnesses who are PWs-2 to 5 and she has, also examined the son of Kalyani by name Anil Kumar as P.W-6. She has got marked Ext. P-1 to P11 documents to substantiate her claim. On behalf of the defendants, the first defendant has been examined as D.W. 1. She has produced the will which she has propounded and which is marked as Ext. D-1. On consideration of the oral, documentary evidence on record and after hearing the parties, the court below has recorded the following findings :

a. The plaintiff has proved the due execation of Ext. P-1 the first will dt. 25.5.87 of late Sri, Singa Gujaran.

b. Contents of Ext. P1 depict that the schedule B-property was not at all bequeathed to the plaintiff

c. As the plaintiff has failed to prove or convince the court that it is defendant no. 2 who was in custody of Ext. P-1 made corrections thereby deleted the name of the plaintiff, then only the plaintiff would be entitled to a share in the B-schedule property and then only the deletion of her name and corrections has to be ignored.

d. Though the plaintiff has proved Ext. P1 as under the said will the plaintiff do not get any right in any portion of B-schedule property she is not entitled to the relief of partition and separate possession.

e. The defendant has proved the execution of Ext. D1 the second will dt. 25.8.87 which is last and effective will of late Sri. Singe Gujaran.

In view of the aforesaid findings recorded by the trial Judge the suit of the plaintiff came to be dismissed. The plaintiff aggrieved by the said judgment and decree has preferred this appeal

Sri keshava Bhat, learned counsel appearing for the appellant, contended before me, firstly, that the finding of the learned Trial ''Judge that as per the first will Ext. P-1 the plaintiff is not entitled for any share in the B-schedule property because of the deletion of her name is wholly erroneous, as according to him, the said deletions are not duly attested by the executant as required under Section 71 of the Indian Succession Act of 1925. In that view of the matter that will has to be read without those deletions and if it is so read, the plaintiff is entitled to a share in the B-schedule property when the court has held that Ex. P-1 is proved. Secondly, he contended the defendants who have set up the second will dated 25.S.87 have miserably failed to prove the signing of the said document by late Singa Gujaran and also its duo execution, Further, they have not satisfactorily explained the suspicious circumstances surrounding the said will and in that view of the matter the finding of the court below that Ext. D1 is proved is totally erroneous., Lastly, he contended if the said will is held to be not proved and if it is held that the deletion in the first will the name of the plaintiff is unauthorised then the plaintiff would be entitled to 1/3 share in the B-schedule" property and her suit has to be decreed as prayed for.

Per contra, Sri. Sannath Kumar Shetty, ''learned counsel appearing for the respondents contended that the plaintiff has produced Ext. P-5 a xerox copy of the original will Ext. P1 alongwith the plaint. In the entire plaint, she has not made any allegations that the corrections found in Ext. P-1 is unauthorised or it was done subsequent to the due execution of the will by late Singa Gujaran, In other words, she admits the said corrections. If that be the case, a bare reading of the will makes it clear that under Ext. P-1 she is not given any share in the B-schedule property and therefore the suit is liable to be dismissed on that ground alone. Nextly, he contends once the defendant establishes the second will, the first will automatically loses its weight and under the second will as no property is given to the plaintiff she is not, entitled to a share in the B-schedule property as claimed by her. He further contends the due execution of the will and that the executant was in, sound state of mind at the time of execution of the will is proved by the evidence of PW-5 the attesting witness, who also happens to be the doctor who was attending the testator. In that view of the matter the finding of the court below that Ext. P-1 stands proved is legal and valid and do not call for interference. Lastly, he contends merely because the plaintiff was disinherited by executing Ext. D-1 it does not amount to a suspicious circumstances which the propounder of, the will is expected to remove. Even otherwise, the defendant has adduced evidence to demonstrate why the executant disinherited the plaintiff and in that view of the matter the suspicious, circumstances if any, is also satisfactorily removed and thus the will Ext. D1 is established, as such the plaintiff''s suit is liable to be dismissed.

In view of the aforesaid rival contentions canvassed '' before me the points that arise for my consideration in this appeal are as under:

1) Whether the alteration/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 ?

Regarding Point No. Is The plaintiff in support of her contention has relied on the will Ext. P-1 which is dated 25.5.87 executed by her father Singa Gujaran in favour of his daughters. Under the terms of the said will the third defendant has been given A-schedule property exclusively whereas the other daughters, namely, Rukkamma, plaintiff, Dayanandi, first defendant, second defendant are given the B-schedule property, It is by virtue of this disposition when her share in B-schedule property was refused by the defendants, the plaintiff was constrained to file this suit for partition and separate possession. In the written statement filed, the defendants-1 and 2 admit the execution of Ext. P-1, the first will, by their father late Sri. Singa Gujaran. Though they contend that the genuineness and validity of the will set up by the plaintiff is not admitted, a reading of the entire statement makes it clear they are not disputing the said will. However, it is their specific contention that their father has made the alterations in the said will, and by such alteration the name of the plaintiff has been struck off. Thus, under the said will the plaintiff would not get any property as claimed by her. After taking this specific stand further they contend in the written statement, as the father was upset over the plaintiff''s conduct in not attending her mother''s funeral and also in not calling on her at Bombay in 1987 when he had been to the second defendant''s house he wanted to make another will disinheriting the plaintiff. It is in this context with the assistance of the? very same scribe who had.'' prepared the first will and with the assistance of the same attesting witness who had attested the earlier will also, he made the second will Ext. D1 on 25.8.1987 disinheriting the plaintiff According to the pleadings, the only change between the first will and second will is, in the second will the plaintiff was disinherited By such specific stand in the written statement, virtually the defendants are admitting that the necessity to make the second will arose because, in the first will, the plaintiff had been given a share in the B-schedule property and that his father by executing the second will disinherited the plaintiff.

Now coming to the evidence on record, admittedly. PW-1 was not present at the time of execution of Ext. P-1. Therefore, her evidence is of no assistance to find out whether Ext. P-1 is proved or not, or even whether the alterations were made prior to or after the execution of the will. Similarly, the evidence of PW-2 to 5 the doctors who attended the father from the month of August, 1987 up to his death is of no consequence because they are not aware of Ext, P-1 nor they have any role to play at the time of execution of Ext. P-1 The star witness in this case is that of PW-5, the doctor K. Subbarao. The plaintiff examined this doctor to prove Ext. P-1 the will in her favour. PW-5 in his evidence in examination chief has categorically stated that Singa Gujaran died in the year 1987, He knows that the said Singa Gujaran had made a will and the said will was made about three months prior to his death and he has signed the said document He identifies the said will as Ext-P-1 and states that the said document bears the date 25.5.1987. He further states that the said will was made in his building and himself and another person have signed the said will. Looking into the document he says that one B.E. Ameen was also present, Further on looking to the document he states that Narasappayya the scribe of the said will was also present. He categorically states that. Sing a Gujaran affixed his left thumb impression to the said will in his presence. At ''the time of affixing his LTM Gujaran was in sound state of health. He was able to understand what was told to him. The contents of Ext. P-21 was read over to him, Narasappayya read over the same. He has also read Ext. P-1 and all that it contains ware there when he wrote it. Then to a specific question which is recorded in the evidence as question and answer as to when he read the document whether the word ''four'' was struck of and made as ''three'' in pen, he pleads ignorance. Similarly, to another question'' that in the second page the word ''Rukkamma'' has been struck of and the word ''four'' has been struck off and made ''three'' by pen he pleads ignorance. Further, he deposes that -Singa Gujaran was suffering from stomach cancer and when he sent the patient to Dr. Prabhakar somewhere in July/mid-August he was finding it difficult to eat. Later, he has stated that he learnt that Dr. Prabhakar referred the patient to Dr. Ballal and Dr. Ballal after examining the patient confirmed that he was suffering from cancer of stomach. After knowing that he was suffering from cancer he did not take treatment in the hospital as the same could not be treated and he was sent home. This evidence of the doctor given in the examination in chief has not been cross examined to any extent by the defendant. Therefore, in the light of the admissions in the written statement, in the light of the evidence of the attesting witnesses which has remained unchallenged in the cross examination the court below was justified in holding that the plaintiff has proved the due execution of Ext. P-1. As the plaintiff was at Bombay when Ext. P-1 was executed and as under the will the father has provided shares for all the daughters and as no suspicious circumstance is alleged by the defendants in so far as Ext. p-1 is concerned, the question of propounder of the will explaining the suspicious circumstances would not arise in this case, When plaintiff has proved Ext. P-1 the finding of the court below that Ext. P-1 stands proved do not call for interference from this court. However, the question for consideration is, whether these alterations/deletions found in Ext. D-1 whereby the name of the plaintiff is deleted consequently she is disinherited from getting B-schedule property as was originally mentioned is alteration and deletion which was made prior to the execution of the will or subsequent to the execution of the will. In this regard, it is useful to know the law on the point. Section 71 of the Indian Succession Act which deals with an effect of obliteration, inter lineation or alteration in an unprivileged will reads as under:

No obliteration, interalienation or other alterations made in 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 indiscernible, 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.

A perusal of the aforesaid Section makes it clear if any alteration is made in an unprivileged will after the execution thereof the will have no effect unless such alteration has been executed in like manner as hereinbefore required for the execution of the will and the proviso to the said section states that such alterations shall be deemed to be duly executed after 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.

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 Rukkamma has been struck off and subsequently in place is struck ott and the word is inserted in page no. 2 and in third line the word Rukkamma is deleted and in the fourth line. is struck off and 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 exeeution 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 avidence 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 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 Ext. P-1 was executed If that 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. In fact, dealing with these alterations, the learned author B.V. Mithra in his book Indian Succession Act 13th Edition at page 101 had to say this

Where unattested alterations appear on the face of a will and no information can be given, and there are no circumstances one way or the other to show that the alterations were made, the presumption is that''s the alterations were made after the execution of the will and in such circumstances propounder should issue with a copy of the will without those alterations 17. In the instant case, we have the written admission of the defendant in the written statement wherein at paragraph-7 it is clearly started that the only change that took place was to disinherit the plaintiff and that was done under the circumstances already stated above. Therefore, the defendants are very specific that in the first will the property was given to the plaintiff and the second will came to be executed to carry out with the change so as to disinherit the plaintiff from getting the B-schedule property. If that is so, these alterations were made unauthorisedly and after realising the folly they did not press the will with the said alterations and the specific stand taken by the defendant that the second will was executed to disinherit the plaintiff who had been given a share in the first will makes it abundantly clear. Apart from that, a perusal of the original will Ext. P-1 at the last page makes it clear that the executant has put his LTM at the end of the last line leaving no space for any writing. The said line which is in ink indicating that such alterations have been made were prior to the executant putting the LTM on the will. The said line should have found a place for the LTM and as the LTM has been put without leaving any pace the said line is written by the side of the LTM. Therefore, from the aforesaid material on record, I am fully convinced that these alterations have been made to the will subsequent to its due execution and as they are not attested as required under law the said alterations had to be ignored and the will has to be read without those alterations in which event the plaintiff would be entitled to a share in the''.B-schedule property. In this regard, the finding of the court below that the said alterations were there even before the execution of the said will is contrary to the material on record and is liable to be set aside, and accordingly set aside. In the light Of what is stated above, I have no hesitation in holding that the alteration/deletion of the plaintiffs name in Exhibit P1 was clone subsequent to due execution of P1 and therefore had to be iqnored.

Regarding Point No. 2 : The next question is even if Ext. P-1 is held to be duly proved and the second will is also duly proved the plaintiff cannot succeed in this suit. Therefore the question is whether Ext. D-1 which is the last will of the testator and by executing the said will whether the first will was cancelled. The second will has been propounded by defendants-1 and 2. The said will has been denied by the plaintiff. She has specifically stated in her plaint that the defendants-1 and 2 taking advantage of the ill-health of the father have conspired together and brought about another will purported to have been executed by late Singa Gujaran and she contends that the said will is concocted and forged will and it is brought about when the deceased Gujaran was seriously ill and was not in disposing state of mind and the same is not valid and binding. In view of the specific denial of Ext. P-1 the defendant to succeed has to establish, firstly, that the said will contains the signature/LTH of Singa Gujaran, secondly, she has to establish that it was duly executed by him in a sound state of health and lastly she has to satisfactorily explain the suspicious circumstances surrounding the execution of the said will. In order to prove this will, the defendant relies on the evidence of PW-5. In fact, P.W-5 was examined by the plaintiff to prove the due execution of Ext. P-1 as he was one of the attesting witness to Ext. P-1. As he also happens to be one of the attesting witnesses to Ext. D-1, the defendants are now relying fan his evidence. As stated earlier PW-5 gave evidence and regarding due execution of Ext. P-1 not even a single question was put to him in the cross examination by the defendant to challenge the said testimony. The reason is obvious. They are admitting the said document and they are not finding fault with the evidence of PW-5 in so far as the execution of Ext. P-1 is concerned. However, under the guise of cross examination of PW-5 what the defendant has done is to lead the evidence of PW--5 to prove Ext. D-1. As PW-5 did not give any evidence contrary to what he has stated in examination in chief the plaintiff could not have treated him as a hostile witness. Nevertheless, when he spoke about Ext. D-1 with the permission of the court it was open to the plaintiff to cross-examine PW-5. Unfortunately, no such attempt is made and therefore the evidence of PW-5 recorded as evidence in the cross examination virtually stands in the position of examination in chief by the defendant in respect of Ext. D-1, Therefore, now the entire case of the defendant rests on this portion of the evidence of PW-5 to prove due execution of Ext. D-1.

PW-5 in the cross examination in connection with Ext. D1 has stated as under:

In my knowledge Singa Gujaran had made two wills, I am a witness to the second will also and I have signed the same. The second will is also written by Narasappayya. He has identified the second will which is marked as Ext. D-1 and he has signed the said Ext. D-1 as a witness. He further states that one Doctor Somashekar is another witness to the said will. The executant has affixed his LTM on Ext. D-1 and the witnesses have signed the said will in his clinic before the executant affixed his LTM. Narasappayya has read over the contents to him. Narasappayya is dead. Ext. D-1 is executed on 25.5.1987. He has examined him in between the execution of these two wills. Narasappayya''s house was at about 20 yards from his clinic. Till his death he was mentally alert. It is on the basis of this evidence the defendants contend that Ext. D-1 has been duly executed.

Before appreciating the said evidence to find out whether the said evidence proves the due execution of the will it is necessary to have a look at the requirements of the due execution of a will as contained under Section 63 of the Indian Succession Act 1925, which is to the following effect:

Execution of unprivileged wills: Every testartor not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a mariner art 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.

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 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, hut 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

The three rules enunciated in the aforesaid section makes it clear that the will shall be attested by two or more witnesses each of whom has seen the testator ''sign or affix his LTM to the will. In the instant case, the aforesaid evidence of PW-3 does not disclose that the deceased testator affixed his signature in his presence. Secondly, the requirement is each of the witness shall sign the said will in the presence of the testator. The aforesaid evidence discloses that PW-5 did not say when he affixed his signature as a witness to the will in the presence of the testator. On the contrary, he categorically states that the testator affixed his LTM and the witnesses attested the document in his clinic thereby meaning all that was not done before him. The very same witness while dealing with Ext. P-1 has stated that he could identify the will executed by Singa Gujaran which is Ext. P-1 dated 25.8.1987. The said will was done in his clinic and was written by Narasappayya who was also present. Singa Gujaran in his presence affixed his LTM to Ext. P-1 At that time he was in a sound state of health and he was able to understand what is told. The contents of Ext. P-1 was read over to him and Narasappayya read over the same. In contrast with this evidence, we do not find the evidence of PW-5 in respect of Ex. Pi stating that either the executant signed in his presence or he signed in the presence of the executant, but the evidence disclose? that the will was executed and the witnesses attested the document in the clinic. In these circumstances I am of the opinion that the requirements of Section 63 regarding due execution of the will has not been complied with. As such in ''my opinion the defendant has failed to prove the due execution of the will.

Even otherwise, there are suspicious circumstances surrounding the execution of the will. None of them have been explained much less satisfactorily by the defendant who has propounded the will. The only reason given for disinheriting the plaintiff is that the plaintiff did not attend her mother''s funeral and when her father visited the second defendant at Bombay though the said information was given to the plaintiff she did not choose to go and visit the father. Because of these two circumstances, the father who had given a share to the plaintiff first was being upset by her conduct and executed the second will to disinherit the plaintiff. On the face of it the said reason given for disinheriting the plaintiff de not appear to be genuine. The mother of the plaintiff died in the year 1985. If his father was upset cecause she did not attend the funeral in 1983 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. P1 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 11th 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, 1907 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 was staying In the cross examination of D.W-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. Therefore, it would be one of the suspicious circumstance surrounding the execution of the Will. Another circumstance which propounder has to clarify is the necessity for the executant to execute a Will three months after the execution of the first will. Now it is not in dispute that under the first Will Ex. P1. plaintiff was given a share in the "B" schedule property. If by executing the second Will the intention of the testator was to disinherit the plaintiff there must be some valid reason. No such reason is given in the Will Ex. Di for disinheriting the plaintiff. Then the question would be what transpired between the execution of the first and second Will so as to deprive the plaintiff of a share in the "B" schedule property which her father bestowed on her while executing Ex. P1. The defendants on whom the burden of clarifying that suspicious circumstance rests have sought to explain by giving two reasons. The first reason given was that the plaintiff did not attend the funeral of her mother. Therefore, the father was upset with her conduct and that was given as one reason to disinherit the plaintiff. On the face of it the said reason do not stand to reason because the mother of the plaintiff died in the year 1985. If she could not attend the funeral of her mother in 1985 the father who made the first bequest on 25.5.1937 would not have given her a share in the said property. On the contrary there is a specific bequest in favour of the plaintiff under Ex. P1 which is dated 25.5.1987 which came into existence nearly two years after the death of the plaintiff''s mother. Therefore, I am unable to accept the said explanation for depriving the plaintiff of a share in the property when Ex. D1 came into existence. The second reason given was after the execution of. Ex. P1 in the year 1987 the testator visited Bombay and stayed with the second respondent. Though the plaintiff was informed of the said visit of the testator plaintiff did not choose to visit her father at the second defendant''s house. That is the second reason giver by the propounders of the will to disinherit the plaintiff. Absolutely no evidence is adduced to the effect that the testator went to Bombay after the first will in the year 1987. On the contrary the evidence on record shows on 11th of August 1987 he was admitted to the nursing home. Therefore he must have visited Bombay subsequent to 25.5.1987 and prior to 11.8.1987. The best evidence in this regard would have been the evidence of the second defendant in whose house the father resided at Bombay. Though she is a party to the proceedings, she has filed the written statement taking up such plea, she did not step into the witness box the plaintiff who has, spoken about the said fact is unable to give the date on which they went to Bombay and any other attendant particulars. Under these circumstances in the absence of any material on record the plea set up by the defendants that father visited Bombay in the year 1987 and because the plaintiff did not visit him at Bombay, he was upset so as to disinherit the plaintiff cannot be accepted. Once these two reasons given are not acceptable I am unable to understand what made the testator who had bequeathed a portion of the "B" schedule property to the plaintiff under Ex. P1 disinheriting the plaintiff by executing Ex. D1 Yet another circumstance which stare at the face is if at the time of execution of Ex. P1 itself the father had an intention to disinherit the plaintiff and therefore made the necessary alterations in Ex. P1, there was no necessity for the testator to execute a second Will. If it is to be held under the first Will the testator had no intention of disinheriting the plaintiff, the defendants have to make out a very strong case justifying disinheriting the plaintiff under Ex. Dl. In that regard they have miserably failed to prove their case. However, the inconsistent stand taken by the defendant also creates suspicion in the mind of the court. After taking a specific contention the testator altered Ex. Pi so as to disinherit the plaintiff in the written statement itself at paragraph 7 in categorical terms they have pleaded that in the first Will the'' plaintiff was given a share in the property and in paragraph 6 the testator want to disinherit the plaintiff the second Will came; into existence. The only change between these ''two Wills is in the second Will the plaintiff was disinherited. The alteration in Ex. P1 gives raise to a serious suspicion. Havana put forth the case of alteration having been made by the testator in Ex. P1 before execution of Ex. Dl subsequently the defendants have virtually given up that case. It is not in dispute that the original one was in the custody of the first defendant and it is she who has produced the original Will before the court. Therefore, it is clear from the beginning an attempt is made to deprive the plaintiff of her legitimate share in the "B" schedule property as against the wishes of her father. Probably after effecting the alterations in Ex. P1 when they were convinced, that may not stand the test of judicial scrutiny an attempt appears to have made to create the second Will. It appears from the material on record they are fully conscious of the law on the point. Therefore, they have taken the precaution to see that the second Will is also drafted by the very same person and one of the attesting witness of the second Will is also the attesting witness for the first Will. In view of these undisputed facts, learned counsel relied on a judgment of this Court in the case of Bidari Basamma (Deceased by L. Rs) and Others v Kainchikeri Sri Sadyojathappa and Others (AIR 1984 NOC 237) and contended that where the executant of a second Will in respect of the same property had taken care to see that the second Will was prepared by the scribe who had scribed the earlier Will and was attested by the witness who attested the earlier Will and the attestors had deposed to the execution of the latter Will and stood the test of cross-examination, the second Will could not have said to be invalid. In the instant case the evidence on record discloses that on 11th of August 1987 the testator was admitted to the hospital and thereafter on 13th of August after examination it was found that he was suffering from stomach cancer. The evidence further discloses as doctors advised that no useful purpose would be served either in treating the testator or keeping him in the nursing home they advised to take back the testator to house. Accordingly, the testator was discharged from the hospital on 13.8.1987. If the evidence of PW6 has to be believed three persons lifted him from the hospital, put him in the car, then he was brought to the house and thereafter he did not recover and he expired on 6.9.1987. It is during this period the second Will Ex. D1 is alleged to have been executed by him- It is also not in dispute that the second Will is a typewritten document. It is true that the scribe of both the documents are one and the same. A perusal of the second Will shows it is a replica of the first Will except for removing the name of the plaintiff as one of the beneficiaries of the Will. No evidence is adduced to demonstrate before the Court that the second Will was prepared on the instructions of the testator No evidence is adduced to show when the testator instructed the scribe to prepare the second Will and where the second Will was typed. On the contrary the evidence of PW5 a common attesting witness to the Will shows chat the Will was executed in his clinic and not in his presence. It is not a case where the persons who have attested Ex. P1 have attested Ex. D1. Only one witness, i.e. the doctor, PW. 1, is common. The other witness to Ex. D1 is none ether than the brother of the first defendant''s husband who is also a doctor. That witness has not been examined and no reasons are given for non-examination of that attesting witness. As already I have discussed above PW5 who has been examined whose evidence is relied upon in proof of Ex. Dl has not stated before the Court that the testator has affixed his LTM to the Ex. Dl in his presence and that he has not stated that he has affixed his signature as a witness in the presence of the testator. On the contrary evidence is the. Will was signed by the testator attested by the witness in the clinic. Therefore. I do not find the law laid down in the aforesaid decision has any application to the facts of this case in the light of what is stated above.

Lastly, if really the intention of the testator was to disinherit the plaintiff after giving her a specific share in Ex. P1 in the normal circumstances he would have given the reasons in the second Will regarding why a necessity to make a second Will within three months of the execution of the first Will arose and the reasons for disiniheriting the plaintiff. No such reasons are forthcoming In this regard it is useful to refer to a judgment of the Supreme Court in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, wherein the Supreme Court held as follows:-

In dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the''-document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by Law. Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases'' the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.

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It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounded must, remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the par-ties.

In view of the aforesaid law laid down by the Supreme Court in the facts and circumstances of the case I am of the opinion not only the propounder of the Will Ex. D1 has failed to establish due execution of Ex. Dl and that the testator was in a sound state of mind at the time of execution of Ex. Dl but also has failed to satisfactorily remove the suspicious circumstance surrounding the execution of Ex. D1.

Learned counsel for the respondent relied on a judgment of the Hon''ble Supreme Court in the case of Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, and contended that in every case of Will the normal line of succession is interfered with and merely because natural heirs are excluded in a Will that by itself would not amount to a suspicious circumstance. In the aforesaid decision, the Supreme Court was considering a case where the persons who were disinherited were the descendants of a full blood sister and the persons who had preferred are the sons of half blood brother, In that context the Supreme Court has observed deprivation of natural heirs by the testatrix should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. So the natural heirs would be debarred in every case of Will, of course it may be in some case they are fully debarred and others only partial and therefore they concluded by saying that disinheritance of full blood sister in preference to sons of half blood brother would not be taken as suspicious circumstance. In this case three months prior to the execution of Ex. D1 the testator had given property to the plaintiff who is his natural daughter. By Ex. D1 it is the natural daughter who has been disinherited. This is a case where a natural heir is sought to be disinherited by execution of Ex. Dl and therefore the law laid down in the context of the facts of the said case has no application to the facts of this case. Yet another circumstance is that a crude attempt was made to disinherit the plaintiff by making unauthorised alterations in Ex. P1 If the testator has not assented to the said alterations it only means he had no intention of disinheriting the plaintiff. But the defendants 1 and 2 made an unsuccessful attempt to make it appear that the testator did disinherit plaintiff even under Ex. P1 If in this background when we look at Ex. Dl where the testator purported to have disinherited the plaintiff it only demonstrates that though the testator had no intention of disinheriting the plaintiff Ex. D1 is created so as to deprive the plaintiff of her legitimate share in "B" schedule property as per Ex. P1. The court below while dealing with these suspicious circumstance has observed that though non-mention of the earlier Will in the latter Will is one of the strong suspicious circumstance to disprove'' the second Will and that if there is a short interval between the two Wills the second Will creates suspicion and that suspicion is required to be proved by those who propounded the Will proceeded to hold that in the instant case it is the third defendant who is the aggrieved person under Ex. P1 whose name is altered by deletion and when third defendant has not challenged the said Will he went on to hold that Ex. Dl stands proved. Further, the court below relying on the evidence of PW5 has come to the conclusion that the second Will even if it is taken as remained unchallenged would not satisfy the requirement of Section 63 of the Indian Succession Act of.1925 as proof of due execution of a Will which has been completely ignored by the trial Judge. Moreover, the approach of the trial Court as could be gathered from the judgment is when in Ex-. P1 itself plaintiff has been disinherited it is immaterial whether the second Will is strictly proved or not, an approach which is totally illegal and contrary to law. Therefore, for the reasons aforesaid, I have no hesitation in holding that the defendants had failed to prove the due execution of Ex. Dl and the finding of the trial Judge on this aspect is totally illegal, unsustainable in law and accordingly it is decided.

In view of my findings on point. Nos. 1 and 2 when once it is held the defendant has failed to prove due execution of Ex. D1 and when execution of Ex. P1 is proved and also admitted toy the defendants the parties rights have to be worked out in terms of Ex. P1. While working out the rights under Ex. P1 alterations made in Ex. P1 has to be ignored for the reasons stated by me supra and also as contained in Section 71 of the Indian Succession Act. Once it is held Ex. Pi without those alterations has been proved then in terms of Ex. Pi the plaintiff would be entitled to one-fourth share in the "B" schedule property. Similarly the terms of the Will makes it clear that a sum of Rs, 15,000.00 has to be paid to the son of the testator Ravindra who is said to be a dumb person and another sum of Rs. 15,000.00 to the third defendant Kalyani, there is a direction to pay the aforesaid amounts to defendants 1 and 2. The evidence on record discloses that the building situated in "B" schedule property are fetching a rent of Rs. 850.00 and the said rent is being collected by Amarnath, the son of the testator and the said amount has been utilised for payment of property tax, maintenance of the building and maintenance of Ravindra. Under these circumstances, the plaintiff would not be entitled to any accounting of the income of the "B" schedule property. She would be entitled to income from the "B" schedule property only after the aforesaid liabilities are discharged

In view of the aforesaid discussion, I pass the following order:-

Appeal is allowed in part. Plaintiff is declared to be entitled to one-fourth share in all the "B" schedule properties. Prayer for accounting till the date of decree is rejected. However, she will be entitled to future mesne profits. Parties to bear their own costs.