M. Sadananda Swamy, J.
1. The appellants in R.S.A. 754/70 are the plaintiffs 1 and 2 in the trial Court in Special Suit No. 37 of 1967 and the respondents are defendants 1 end 2. The parties will be referred to in relation to R.S.A. 754/70. The appellants ere common in all the three appeals. In R.S.A. 753/70 the 1st defendant Bharmappa is the sole respondent and in R.S.A. 728/70 the second defendant Kallappa is the sole respondent.
2. The suit properties consist of a house bearing V. P. C. No. 220 situate at Dhupdal village in Gokak Taluk and two lands -- one R. S. No. 88/1 plus 2, plus 3, plus 4-A measuring 6 acres and another bearing R. S. No. 191/1 measuring 4 acres 18 guntas both situate at Dhupdal. These properties originally belonged to one Kallappa Mallappa Damannavar, who was the brother of the appellants' father Ramappa. Kallappa died on 23-12-1938 leaving no issues either male or female. After his death, his widow Akkavva inherited these properties. She died on 6-9-1966. Thereafter, disputes arose between the appellants and the respondents in respect of these properties. Respondent 1 is the husband of Akkawa's sister. Respondent 2 is Akkawa's brother. The appellants claim the properties as heirs of their paternal uncle Kallappa whereas the respondents claim them under a will alleged to have been executed by Akkawa on 1-10-1964 in their favour. The dispute between them led to the initiation of proceedings under Section 145 of the Code of Criminal Procedure, and on 4-11-1966. the Sub Divisional Magistrate, Baithongal. attached the suit lands and entrusted them to the management of the Tahsildar.
3. Thereafter, the second respondent filed a suit in O. S. 61/67 in the Court of the Munsiff at Gokak for a declaration that he has become the owner of the suit land R. S. 88/1 plus 2 plus 3 plus 4-A under the said will and for permanent injunction restraining the appellants from interfering with his possession and enjoyment of the land. On the next day. on 19-4-1967. respondent 1 also filed a suit O. S. 63/67 in the same Court against the appellants for a similar relief in respect of the other two suit properties and also claiming them under the same will. Thereafter on 26-6-1967, the present appellants filed Special Suit No. 37/67 in the Court of the Civil Judge, Belgaum. against both the respondents for a declaration that after the death of Akkavva, they had become the owners of the suit properties and for possession of the suit house and future mesne profits. They did not ask for possession of the suit lands as they were by that time in the management of the receiver appointed by the Sub-Divisional Magistrate. During the pendency of these suits, an application was filed in the District Court in Misc. Application No. 4/68 for transfer of the two suits from the Court of the Munsiff. Gokak, to the Court of the Civil Judge, at Belgaum and accordingly, they were transferred and on transfer. O. S 61/67 was renumbered as O. S. 91/68, and O. S. 63/67 was re-numbered as O. S. 93/68 in that Court. All the three suits were heard together and common evidence was recorded in Special Suit No. 37/67 and they were disposed of by a common judgment. Since the pleadings in all the three suits were identical, the Civil Judge referred to only the pleadings in Special Suit No. 37/67 in the course of his judgment. The trial Court dismissed O. S. 37/67 and decreed the suits O. S. 91/68 and O. S. 93/68. On appeals being filed, the District Judge, Belgaum, heard the three Regular Appeals Nos. 18, 19 and 20 of 1969 together and disposed of them by a common judgment confirming the decrees of the trial Court. R. A. Nos. 18, 19 and 20 correspond to the Original Suits Nos. 37/67, 93/68 and 91/68. The present second appeals have been filed against the decrees in the said Regular Appeals. R.S.As. 728/70, 753/70 and 754/70 correspond to R. As. 19/69, 20/69 end 18/69 respectively.
4. It is the case of the appellants that Akkavva was suffering from some serious disease and was an inpatient in the Karnataka Health Institute at Ghataprabha from 18-2-1964 to 1-10-1964, from 3-10-1964 to 23-10-1964 and from 5-11-1964 to 13-11-1964 and that during that period she was operated thrice, that she died intestate on 6-9-1966, that she did not execute any will on or about 1-10-1964, that during that period she was ailing very seriously in the Karnataka Health Institute at Ghataprabha, that she was not in a fit state of health and did not possess the requisite testamentary capacity to make a will and that the will dated 1-10-1964 relied upon by the respondents is a fabricated and forged document. They alleged that respondents 1 and 2 have fabricated the alleged will with a view to lay claim to the suit properties.
5. On the other hand, it is the case of the respondents that though Akkavva was an inpatient in the said hospital during the said periods, she was not suffering from any serious disease, that in the month of September 1964, she developed a swelling on the forehead and the same was removed by operation on 21-9-1964, that she was fully cured by 1-10-1964 and that on 1-10-1964 while she was in a fit and sound disposing state of mind, she voluntarily executed a will bequeathing the suit properties in their favour and got the same duly registered on that very day. It was also pleaded by them that a litigation was pending between her and the appellants since a long time in respect of the house properties which were not divided, that she was on inimical terms with them and that it was natural that she executed such a will in favour of the respondents who are her close relations.
6. Issues 1-A and 1-B threw the onus of proving that the will was executed by Akkavva and that she was in e sound disposing state of mind at the time when she has so executed the will on 1-10-1964 is on the respondents. Both the lower Courts have held that the respondents have proved that the will was executed by Akkavva and that she was in a sound disposing state of mind at that time.
6-A. D.W. 1 is the scribe of the will; D W. 2 is one of the attestors of the will. D.W. 3 is the pleader at Gokak who was consulted by Akkawa before she executed the will. D.W. 4 is the Chief Medical Officer of the Karnataka Health Institute. Ghataprabha, who treated Akkawa during her stay in the hospital and D.W. 5 is the 1st respondent. The other attestor Shivanagouda Mallagouda Patil is not examined as he was said to be dead. No witnesses were examined on behalf of the appellants. The will is marked as Ex. D-1.
7. D.W. 1 Basaventhappa is the professional document writer at Gokak. He states that he knew Akkavva earlier and that on 1-10-1964 at about 8.30 or 9 A.M. Akkawa, Shivanagouda Mallagouda Patil. the Revenue and Police Patil of Dhupdal. D.Ws. 2 and 5 came to his office, that Akkavva told him that there was a wound on her forehead, that she must undergo an operation, that she was not sure of her future and that she wanted to make a Will in favour of the respondents, that she gave the details of her properties and the manner in which they should be bequeathed, that she was then in a sound and disposing state of mind and was capable of understanding the nature of the transaction that he accordingly wrote the will Exhibit D-1, that after he read over the document to Akkawa, she told him that she would like to show it to her lawyer before affixing her left thumb impression, that she told him that what had been written by the witness was correct, that they left and returned after half an hour, that she told him that her lawyer had approved of Exhibit D-1, that she affixed her left thumb impression on Exhibit D-1 in his presence that he wrote the shara to her left thumb impression, then Shivanagouda Patil and D.W. 2 attested the document in the presence of Akkawa and the witnesses that D-1 (c) and D-1 (d) are their respective attestations, that they all left his office thereafter saving that they would go to the Sub-Registrar's Office. The evidence of D.W. 2 is also to the same effect. The evidence of the witnesses is corroborated by the evidence of D.W. 5. D.W. 5 has stated in his evidence that there was swelling on the forehead of Akkawa, she was admitted to the Karnataka Health Institute at Ghataprabha that the operation took place in the Hospital that 9 or 10 days thereafter the swelling subsided, that she was cured, that when she was in the hospital he was looking after her welfare, supplying her meals that Akkawa stated that there was likelihood of another operation, that she would like to execute a will, that she sent for D.W. 1 and Shivanagouda Patil a day earlier to the date of the execution of the will, that the Doctor permitted her to leave the hospital on 1-10-1964 but that she was brought out of the hospital on the previous day at about the time of sun-set, that she was taken to Dhupdal on 1-10-1964, they started from Dhupdal at 7 or 8 A. M. and went to Gokak. Gokak is six miles away from Dhupdal that they reached Gokak at about 8 or 9 A. M. and went to the house of D.W. 1 in the car of Shri Patil. He has corroborated the evidence of D.W. 1 as to what took place in the office of D.W. 1. D.W. 3 is Mr. K. D. Kulkarni, a practising pleader at Gokak, who has stated in his evidence that on that day morning at about 9-00 or 9-30 A. M. Akkawa brought and showed the will Exhibit D-1 to him before putting her left hand thumb impression on it and that he told her that it was quite alright, that she was then keening fit and was capable of understanding things, that she and Shivanasouda Patil who had accompanied her went away. The evidence of D.W. 4 Dr. M. K. Vaidya, the Chief Medical Officer of the Karnataka Health Institute at Ghataprabha, is that he is the Chief Medical Officer of that hospital since 20 years, that Akkavva was suffering from tumor on the forehead between 18-9-1964 to 1-10-1964 that the first stage of an operation was performed on her, that the mental condition of the patient was normal, that she was in normal health at the time of her first discharge from the Institute. In cross-examination it was elicited from this witness that apart from the certificate there is no other record to show when the patient was discharged on 1-10-1964. and when she was readmitted on 3-10-1964. He has also stated in the cross-examination that there was no record to show that she was in the hospital on 1-10-1964 and 2-10-1964. He has further stated that there is nothing on record to show at what particular time the patient left the hospital on 1-10-1964. He has also spoken to the fact that she was operated upon for the second time and then again for the third time she was operated on 5-10-1964. Both the lower Courts have accepted his evidence as to the physical and mental condition of Akkawa at the time when she was discharged from the hospital for the first time. He has stated that the tumor of the kind which was on the forehead of Akkawa would not affect the person's mental condition. He is an experienced doctor and an independent witness and no reason has been shown to question the decision of the lower Courts in having accepted his evidence. Moreover, his evidence is also corroborated by the evidence of the other witnesses who have all stated that Akkawa was in a sound disposing state of mind on 1-10-1964 and that she was able to move about like any other person,
8. It is contended by Mr. J. S. Gunjal, the learned counsel appearing on behalf of the appellants, that though the issues were framed correctly throw-Ins the burden of proof on the respondents, the lower appellate Court has made a wrong approach and has held that the appellants have failed to establish their case that the will is a forged one. But the trial Court as well as the lower appellate Court have considered the entire evidence, oral and documentary, and come to the conclusion that the respondents have established that the will was executed by Akkavva and she was in a sound disposing state of mind at that time. It is only after recording its findings on the issues in that manner that the lower appellate Court has observed that the appellants have failed to establish their plea that the will is a forged one. Hence, the contention of the appellants must fail.
9. It is next contended by Mr. Gunjal that the suits filed by the respondents namely, O. S. 91/68 and O.S. 93/68 are for declaration of their title as well as for injunction and that the suits are not maintainable since on the dates the said suits were filed the receiver appointed by the Sub-Divisional Magistrate, was in possession of the two lands which were the subject-matter of the said suits. These suits were not merely for injunction but they were also for declaration of title as well as for injunction. Hence, it cannot be said that the suits were not maintainable. But the contention of Mr. Gunial that the lower Courts could not decree the suits in respect of the relief of injunction has to be upheld, since, admittedly, the plaintiffs in the said suits were not in possession of the said suit properties on the dates the suits were filed. It is also not denied that the receiver continued to be in possession of the suit lands. Hence, the decrees of the lower Courts in O.S. Nos. 91/68 and 93/68, have to be modified in so far as they relate to the relief of injunction.
10. It is next contended by Mr. Gunjal that the findings of the lower appellate Court are vitiated, since the material evidence in the case namely, the parts of the evidence of the witnesses relating to their cross-examinations, have not been considered by the lower appellate Court. The lower appellate Court has not considered in detail the evidence of the witnesses in their cross-examinations; it has observed while considering their evidence that nothing has been elicited in their cross-examination to disbelieve them. Hence it cannot he said that the evidence of the witnesses in cross-examination and the answers of the witnesses, have not been considered by the lower appellate Court.
11. Mr. Gunial relied on the observations in H. Venkatachala Iyengar v. B. N. Thimmajamma, : AIR1959SC443 wherein it has been held that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. His contention is that the first respondent took an active part in getting the will executed by Akkawa end that circumstance itself creates a suspicion against the voluntary nature of the bequests made by Akkavva. Mr. Gunjal next relied upon the decision in Purnima Debi v. Khagendra Narayan, : 3SCR195 wherein it has been held that the registration of the will is not by itself sufficient to dispel all suspicion regarding it where suspicion exists. In the present case, the Sub-Registrar has not been examined. It is in evidence that there were legal proceedings between Akkawa and the appellants in respect of the house property which had not been divided during the lifetime of her husband and that it was only the respondents who were on cordial terms with her. It is therefore natural to expect Akkawa to make bequests of her properties only in favour of the respondents and to exclude the appellants from any benefits under the Will. Apart from the evidence of D.W. 1, the scribe, and p. W. 2 the attestor, which has been relied upon by both the lower Courts, there is the evidence of D, W. 3, K. D. Kulkarni Pleader of Gokak who conducted the previous litigation on behalf of Akkawa against the appellants. He has stated in his evidence that Akkawa had brought to him Exhibit D-1 before she affixed her thumb impression and consulted him on the morning of 1-10-1964. that she had come with Shivanagouda Patil, that he told her that the terms of the document are proper and that Akkawa and Shivanagouda Patil thereafter went away. Both the lower Courts have relied upon his evidence and nothing has been elicited in his cross-examination to show as to why his evidence should not have been accepted. Therefore, it is not material in this case that the Sub-Registrar has not been examined since the evidence of this witness shows that Akkavva was very well aware of the contents of Exhibit D-l before she affixed her thumb impression to the said document.
12. In the will there is a misdescription of the numbers of the houses which formed the subject-matter of the will. House No. 220 is stated to be in the possession of Akkawa whereas in fact it is in the possession of the appellants. It is contended that this is also a suspicious circumstance. This circumstance has been considered by the lower appellate Court. It has observed that this circumstance has no material significance. Further, it was observed that even in their plaint the appellants have described one of the suit lands as S. No. 191/1 whereas it ought to be S. No. 171/1. Such mistakes accrue by oversight or inadvertence and it cannot be said that the lower appellate Court was in error in not attaching any significance to that circumstance.
13. Exhibit P-2 is a certificate issued on 17-12-1966 by the Chief Medical Officer of the Karnataka Health Institute, which states that Akkavva was under treatment in the hospital as an indoor patient from 18-9-1964 to 1-10-1964 from 3-10-1964 to 23-10-1964 and from 5-11-1964 to 13-11-1964 and that operations were performed on her on 21-9-1964, 3-10-1964 and 5-10-1964, The evidence of D.W, 4 Dr. Vaidya is to the effect that Akkawa was treated between 18-9-1964 and 1-10-1964 during the first stage of the treatment. He has also stated that apart from the certificate there is no record to show that the patient was discharged on 1-10-1964. But the evidence of the witness is to the effect that Akkawa left the hospital on the day previous to 1-10-1964 and stayed at Dhupdal which is her permanent place of residence. It is in evidence that Dhupdal is 1 1/2 to 2 miles from Ghataprabha where the hospital is situate. Their evidence is that it was at about the sun-set on the 30th September, 1964, that she was taken from the hospital to Dhupdal. Exhibit D-2 is the Indoor History Sheet of the K.H.I. Hospital, Ghataprabha. It shows that Akkavva was admitted on 18-9-1964, discharged on 23-10-1964. re-admitted on 5-11-1964 and re-discharged on 13-11-1964. This is what is stated in the first sheet of Exhibit D-2. Exhibit D-2 consists of five sheets. From this statement on the first sheet it is contended by Mr. Gunjal that Akkawa must have stayed as en indoor patient from 18-9-1964. to 1-10-1964 and from 3-10-1964 to 23-10-1964. that she was discharged on 1-10-1964 and that she could not have gone out of the hospital and executed the will on 1-10-1964. But, the accompanying sheets of Exhibit D-4 which set out in detail the condition of the patient, the routine treatment, the diet and instructions, and also the record of temperatures noted on every day of the treatment, show that Akkawa could not have been an inpatient in the hospital on 30-9-1964 or on 1-10-1964. The temperature, respiration, stool end urine examination of the patient have been noted from 18-9-1964 to 29-9-1964 both days inclusive, but the temperature chart is shown blank after 29-9-1964. The temperature etc.. have been noted again from 4-10-1964. At the bottom of the temperature chart against the entry 30th September 1964. the words 'is discharged' are found. The next entry after 30th September 1964, is the one dated 3-10-1964 on which date the entry 're-admitted on 3-10-1964 is found. There are no entries with regard to the condition of the patient the routine treatment, the special treatment or the diet and instructions for 1-10-1964 and 2-10-1964. In fact, the appellants cannot be allowed to urge this contention in view of the averments made by them in their own plaint in Special Suit No. 37/67 to the effect that Akkawa was an indoor patient in the hospital from 18-9-1964 to 1-10-1964, from 3-10-1964 to 23-10-1964 and from 5-11-1964 to 13-11-1964 and that she was operated thrice in the said hospital. There was no suggestion made to D.W. 4 Dr. Vaidya in cross-examination that Akkawa remained in the hospital on 1-10-1964 and that she had not been discharged on that date. Further St was contended that the certificate Exhibit P-1 shows that Akkawa was discharged only on 1-10-1964 but the evidence of the witnesses is to the effect that Akkawa left the hospital on the evening of 30th September 1964. It is therefore contended that the witnesses who spoke to this fact are unreliable and that their evidence should be rejected. The evidence of the 1st respondent examined as D.W. 5 is to the effect that Dr. Vaidya told Akkawa that she should go on the morning of 1-10-1964, that they brought her away from the hospital the previous evening itself at about the time of sun-set. There is nothing improbable in the fact that Akkawa left the hospital on the evening of 30-9-1964 itself, though she had been permitted to leave the hospital on 1-10-1964. The evidence shows that but for a bandage on her forehead, she was able to move about like an ordinary person on 1-10-1964 and that she got herself re-admitted to the hospital on 3-10-1964. The malady that she was suffering from was a swelling on her forehead which had been operated upon on 21-9-1964, and she was not suffering from any serious disease. There is nothing improbable in Akkawa having left the hospital on the evening of 30th September 1964 itself though the Doctor had permitted her to leave the hospital on 1-10-1964.
14. Mr. Venkataranga Iyengar, the learned, counsel appearing on behalf pi the respondents, relied on the decision in W. Hobins v. National Trust Co. Ltd., (AIR 1927 PC 66) -- en appeal from Canada. While considering the question whether their Lordships should examine the evidence in order to interfere with the concurrent findings of two lower Courts on a pure question of fact, it was observed as follows:
'Whether a man at the time of making his will had testamentary capacity, end whether a will was the result of his own wish and act, or was procured from him by means of fraud or circumvention or undue influence, are pure questions of fact. The rule as to concurrent findings is not a rule based on any statutory provision. It is rather a rule of conduct which the Privy Council has laid down for itself. As such it has gradually developed. The judicature which has given greatest occasion for its development has undoubtedly been the judicature of India, but the principle is not in any way limited in its application to Indian Legislature or Indian Law united as such.'
15. The said principle has been embodied in Section 100 of the Code of Civil Procedure. Both the lower Courts have come to the conclusion that the respondents have established that the Will has been executed by Akkawa and that she was in a disposing state of mind and that she executed it being fully aware of its contents. There is no reason to interfere with the findings of the Lower Courts.
16. R.S.A. 754/70 is therefore dismissed. R.S.A. Nos. 753 and 728/ 1970 are partly allowed and the decrees of the lower Court in O. S. Nos. 91 and 93/1968 in so far as they relate to the relief of injunction are set aside. But the said decrees are confirmed in other respects.
17. The parties shall bear their own costs in all the three appeals.