B. Venkataswami, J.
1. This second appeal is by the defendants in Special Civil Suit No. 19 of 1957, on the file of the Court of the then Civil Judge, Senior Division. Belgaum. It is directed against the judgment and decree made by the Second Additional District Judge, Belgaum, in Civil Appeal No. 50/65.
2. The relevant facts, briefly stated, are as follows. The suit of the respondent was for a declaration that the second appellant herein was not the adopted son of the first appellant the widow of one Basawantappa Karikatti It is also contended that by virtue of a Will executed by Basawantappa Karikatti on 26-4-1917, when he was hardly 18 years of age, the property should devolve upon the respondent's father after the death of the first appellant, the widow of Basawantappa Karikatti. Within three days of the execution of the Will, the testator died of cholera. It is alleged that the second appellant herein has been taken in adoption by the first appellant in the year 1955 contrary to the prohibition contained In the said Will. The defence of the appellants is that the said Will is forged one and that the second appellant has been adopted on 26-11-1955 and the same is evidenced by a deed of adoption. Exhibit 105, dated 1-12-1955.
3. The trial Court came to the conclusion that the Will was genuine and that the adoption of the second appellant was invalid and, therefore, the respondent-plaintiff would be entitled to the declaration sought. The suit was, therefore, decreed. In appeal, the said judgment and decree were confirmed. Hence this appeal.
4. The lower appellate Court came to the conclusion that the Will had been executed by the late Basawantappa and that the same was genuine. In coming to this conclusion, it principally relied on the evidence of P. Ws. 2 and 6, the former being none other than the respondent's mother-in-law and the latter has been shown as a friend of late Basawantappa, the testator, and a mere youth of about 17 years at or about the time of execution of the Will. But, while not enumerating or adverting to the suspicious circumstances attending the execution of the Will, he has kept in view the principles governing the evaluation of the evidence and the burden of proof, clearly imposed on a propounder of the Will, who is also the legatee, as enunciated in two decisions of the Supreme Court referred to by him.
5. On behalf of the appellants, several contentions were urged, and in the view I propose to take of this case. I consider it unnecessary to refer to them In detail. Suffice it to say that both the questions of validity of the adoption of the second appellant herein and also the devolution of the property would depend on the proof of the execution and genuineness of the Will. It may also be remembered that one of the contentions on behalf of the appellants is that by virtue of Section 14(1) of the Hindu Succession Act, which is a provision applicable to them, the first appellant became an absolute owner of the property in dispute. But it is unnecessary to consider this contention in this appeal.
6. It is relevant to refer to the principles governing the matter of proof of Wills as enunciated in the decision of the Supreme Court in Gorantla Thataiah v. Thotakura Venkata Subbaiah : 3SCR473 . On behalf of the Court Ramaswami, J. has stated the position thus:
'It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the Court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case.
If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the Court should proceed in a vigilant and cautious manner............'
7. On a careful consideration of the matter, I am clearly of the opinion that this appeal should succeed on the short ground that the judgment in appeal does not conform to the principles enunciated by the Supreme Court in the above decision, and in that view, it is unnecessary to examine all the contentions urged on behalf of the parties in this appeal.
8. The reasons are as follows:
1. It is seen from the judgment in appeal that considerable reliance has been placed on the evidence of P. Ws. 2 and 6, who as mentioned by me earlier, are none other than the mother-in-law of the respondent-plaintiff and a friend of the testator, who at the relevant time has been stated to have been hardly 17 years of age. The interestedness and qualifications of these witnesses have almost been lost sight of by the learned District Judge. Indeed, the learned District Judge has in more than one place in his judgment, referred to them as 'disinterested witnesses', merely on the score that the trial Court had said so. What is more, he has not examined the evidence of these witnesses on his own, but has merely accepted the conclusion of the trial Court in this regard.
2. It is clear from the circumstances present in the case, that the legatee himself, who was the father of the respondent, has been credited with having dictated the contents of the Will. This is clearly a very strong suspicious circumstance, and such suspicion should be dispelled by clear evidence to that effect. The learned District Judge has not even troubled himself to analyses this suspicious circumstance much less adverted and discussed it in a reasonable way. What is more, he has in para. 13 of his judgment misread this circumstance and says thus:--
'............... In this case it has been proved by both P.Ws. 2 and 6 that the deceased Basawantappa told the contents of the will deed which was writtenby the scribe and attested by witnesses ...................' 3. Certain documents. Exts. 106 to 111, produced on behalf of the appellants have not been considered. They are rent receipts alleged to have been executed by the respondent-plaintiff himself in respect of the suit house and in favour of the first appellant herein. There is no reference whatsoever therein either to the existence of the Will or any assertion with regard to the title of the respondent-thereunder. A non-consideration of these documents is clearly an improper exercise of jurisdiction by a first appellate Court of facts. In saying this, I am conscious of some references to these exhibits by the learned Judge in the course of the judgment. But that is not the same as a consideration of them in the light of the circumstances pointed out by me above.
4. On behalf of the appellants, Ex. 139 has been produced through a witness Chanbasappa, D. W. 4. It is a rent note executed by D. W. 5 in favour of the father of D. W. 4, and it contains the signature of the deceased Baswantappa. This document has been spoken to by both D. Ws. 4 and 5. The learned District Judge has refused to accept the signature of the deceased Baswantappa, on a comparison with the one contained in Ex. 94, the very disputed Will. This to my mind is clearly perverse.
5. It is evidence that although the Will, Ex. 94, is said to have been executed in the year 1917, it had not seen the light of day till the date of suit, i. e., the year 1957. This clearly is a strong suspicious circumstance and such suspicion ought to be repelled by adequate and cogent evidence adduced by the propounder of the Will. The learned District Judge has repelled the argument of the appellants herein merely on the ground that the first appellant had remained unmarried ever after the death of her husband at so young an age as 18 years. According to him, this retention of the unmarried status of the first appellant was because of the knowledge of the existence of the Will, in that she would be deprived of the property in the event of any such remarriage. The further circumstance relied on by the learned District Judge is that she had waited upto the year 1955 for adopting the second appellant herein. This, according to the learned Judge, she has done presumably because she was aware of the prohibition contained in such a Will. Thus, the first appellant is imputed with the knowledge of the existence of the Will. In doing so, he has not taken pains to examine whether the respondent had any reasonable explanation for keeping the first appellant in the dark in regard to the execution of such a Will. To say the least the reasons given by the learned District Judge are highly unreasonable and beside the point.
6. It is in evidence that the testator was hardly 18 years of age at the time of the execution of the Will in question. It is also in evidence that he died within 3 days thereafter. In such a situation, whether or not, the testator had entertained an intention to execute the Will, or that he knew that the Will could be executed, is a circumstance which has to be taken into account. Further, the other circumstance is that if he had intended to execute the Will of his own accord, it must be presumed that it must have occurred to him to execute such a Will on account of his being afflicted by cholera even by then. If that is so, whether he had a proper disposing state of mind, has to be established by clear and cogent evidence. It would not do merely to depend on the interested testimony of the respondent's mother-in-law and a person who was a mere youth at the time of the execution of such a Will, which has been shown to be the case in regard to P. Ws. 2 and 6.
7. It is seen from the judgment of the learned District Judge that he has merely accepted the comparison of the signatures in various documents made by the trial Court. There is no reference to any visual examination of such signatures by the learned District Judge himself.
8. With regard to Exhibit 102. a receipt dated 1-1-1916, alleged to contain the signature of Baswantappa, the learned District Judge has discarded any further examination of that Exhibit for the purpose of comparison of the signature of Baswantappa, merely on the ground that the date is not found or erased and that the document was torn one. This could hardly be a reason to reject such a document.
9. In the result this appeal succeeds and is allowed. The judgment and decree in appeal are set aside. The matter will now go back to the learned Second Additional District Judge, Belgaum, for a fresh disposal of Civil Appeal No. 50 of 1965, on his file, in accordance with law and in the light of the observations made herein. In the circumstances I direct the parties to bear their own costs in this appeal.
10. I, however, wish to make It dear that in enumerating the circumstances for my present purpose, I have not listed all the suspicious circumstances surrounding the execution of the Will in question. Nor do I wish to be understood as having expressed any concluded opinion in regard to them. All the questions, therefore, have been left open.
11. The appellants are entitled to the refund of the court-fee paid on this memorandum of appeal. It is ordered accordingly.